Malon v. Scholler
| Decision Date | 24 November 1911 |
| Docket Number | No. 7,631.,7,631. |
| Citation | 48 Ind.App. 691,96 N.E. 499 |
| Parties | MALON v. SCHOLLER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hancock County; R. L. Mason, Judge.
Action by Caroline Scholler against Edward Malon. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.Williams & Schlosser and Walker & Van Duyn, for appellant. Ephriam O'Harra and James D. Ermston, for appellee.
Action by the 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, Fredericka Lang was the owner of a certain tract of land in Hancock county, Ind., and on said day sold and conveyed the same 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 the defendant, 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 Fredericka Lang; that, after the execution and delivery of the notes, Herman Lang sold and conveyed said real estate to the defendant Edward Malon; that at the time Edward Malon contracted for and purchased the same he had knowledge of the appellee's claim, and knew that said claim was for unpaid purchase money, and that the plaintiff had a lien upon said real estate for the amount thereof; that the defendant knew of the solvency 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 the appellant filed an answer in two paragraphs. The first was an answer in general denial. The second paragraph averred that appellant purchased the real estate in good faith, without any knowledge or notice that the appellee had, or claimed to have, any notes against Herman Lang or any claim or lien on said real estate; that he took the same subject to the life estate of Fredericka Lang, and subject to certain mortgage and judgment liens, and paid the balance in cash in said Herman Lang, the amount assumed and the amount paid being the full value of said real estate. The appellee demurred to the second paragraph of answer upon 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 the appellee. Judgment was rendered upon the conclusions of law.
The errors relied upon for reversal and not waived are (1) that the court erred in sustaining the demurrer of appellee to the second paragraph of answer; (2) the court erred in its conclusion of law No. 1, upon the special finding of facts; (3) the court erred in its conclusion of law No. 2 upon the special finding of facts.
[1] The first of the errors assigned must be held to be well taken, for the reason that the form of the demurrer is insufficient. The statute (section 351, Burns' 1908) 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 has been frequently held that a demurrer to an answer is insufficient, which is based upon failure to state facts sufficient to constitute an answer. Thomas v. Goodwine, 88 Ind. 458;Wintrode v. Renbarger, 150 Ind. 556, 557, 50 N. E. 570;Wade v. Huber, 10 Ind. App. 417, 38 N. E. 351, and cases cited; City of Tell City v. Bielefeld, 20 Ind. App. 1, 4, 49 N. E. 1090.
[2] 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...
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