Malon v. Scholler
| Decision Date | 24 November 1911 |
| Docket Number | 7,631 |
| Citation | 96 N.E. 499,48 Ind.App. 691 |
| Parties | MALON v. SCHOLLER |
| Court | Indiana Appellate Court |
From Hancock Circuit Court; Robert L. Mason, Judge.
Suit by Caroline Scholler against Edward Malon. From a decree for plaintiff, defendant appeals.
Reversed.
Williams & Schlosser and Walker & Van Duyn, for appellant.
Ephraim O'Harra and James D. Ermston, for appellee.
Suit by appellee against appellant to establish and enforce a vendor's lien on real estate. It is alleged in the complaint that on June 15, 1891, Frederica Lang was the owner of a tract of land in Hancock county, Indiana, and on said day she sold and conveyed it, by warranty deed, to her son Herman Lang, reserving to herself a life estate therein; that the grantee, in consideration of said conveyance, assumed the payment of a mortgage of $ 500 on said real estate, and agreed to pay plaintiff, Caroline Scholler, daughter of the grantor, the sum of $ 500, as the remainder of the purchase price, which agreement was evidenced by two notes of $ 250 each, payable in one and two years after the death of Frederica Lang; that after the execution and delivery of the notes, Herman Lang sold and conveyed said real estate to defendant, Edward Malon; that at the time Edward Malon contracted for and purchased said real estate he had knowledge of plaintiff's claim, and knew that said claim was for unpaid purchase money, and that plaintiff had a lien on said real estate for the amount thereof; that defendant knew of the insolvency of his grantor, and agreed, as a part of the consideration, to pay said notes at maturity. Other averments of the complaint are not controverted.
To this complaint defendant filed an answer in two paragraphs. The first was an answer in general denial. The second paragraph averred that defendant purchased the real estate in good faith, without any knowledge or notice that plaintiff had, or claimed to have, any notes against Herman Lang, or any claim or lien on said real estate; that he took said real estate subject to the life estate of Frederica Lang, and subject to certain mortgage and judgment liens, and paid the balance in cash to said Herman Lang, the amount assumed and the amount paid being the full value of said real estate.
Appellee demurred to the second paragraph of answer, on the ground that said paragraph "does not state sufficient facts to constitute an answer in said cause." This demurrer was sustained. Upon request the court made a special finding of facts, and stated conclusions of law thereon favorable to appellee. A decree was entered on the conclusions of law.
The errors relied on for reversal and not waived are that the court erred (1) in sustaining the demurrer of appellee to the second paragraph of answer, (2) in its conclusion of law number one, upon the special finding of facts, and (3) in its conclusion of law number two upon the special finding of facts.
The first error assigned must be held to be well taken, for the reason that the form of the demurrer is insufficient. Section 351 Burns 1908, § 346 R. S. 1881, provides that where the facts stated in any paragraph of answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it, under the rules prescribed for demurring to a complaint. It frequently has been held that a demurrer to an answer is insufficient, when it is based upon the failure to state facts sufficient to constitute an answer. Thomas v. Goodwine (1882), 88 Ind. 458; Wintrope v. Renbarger (1898), 150 Ind. 556, 50 N.E. 570; Wade v. Huber (1894), 10 Ind.App. 417, 38 N.E. 351, and cases cited; City of Tell City v. Bielefeld (1898), 20 Ind.App. 1, 49 N.E. 1090.
But while the sustaining of this demurrer was technically erroneous, the error is not available, for the reason that the answer to which it was addressed contained no averments of fact that could not have been introduced under the first paragraph of answer, that was in general denial. Cincinnati, etc., R. Co. v. Smith (1891), 127 Ind. 461, 464, 26 N.E. 1009; Board, etc., v. State, ex rel. (1897), 148 Ind. 675, 48 N.E. 226; Kidwell v. Kidwell (1882), 84 Ind. 224, 228; McCloskey v. Davis (1893), 8 Ind.App. 190, 193, 35 N.E. 187, and cases cited.
The facts found by ...
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