McCoy v. McCoy
| Decision Date | 09 December 1903 |
| Docket Number | 4,181 |
| Citation | 69 N.E. 193,32 Ind.App. 38 |
| Parties | McCOY ET AL v. McCOY ET AL |
| Court | Indiana Appellate Court |
From Decatur Circuit Court; F. T. Hord, Judge.
Suit by James T. McCoy against Curtis McCoy and others. Defendant Arabella McCoy filed cross-complaint. From judgments for plaintiff and cross-complainant, defendants Curtis McCoy and another appeal.
Affirmed.
J. K Ewing and C. H. Ewing, for appellants.
Cortez Ewing and J. F. Goddard, for appellees.
Appellee James T. McCoy was plaintiff below, and appellants, Curtis and Carrie McCoy, and appellee Arabella McCoy were defendants. Appellee's complaint was originally in ten paragraphs, the seventh, eighth, ninth, and tenth of which were dismissed. A demurrer to each of the others was overruled. Curtis McCoy answered in nine paragraphs, all of which were dismissed but the second and fourth. Appellee Arabella McCoy filed a cross-complaint, to which a demurrer was overruled. Appellants' first and second paragraphs of answer were held bad on demurrer. Trial by the court, and a general finding for appellee James T. on his complaint, and for the appellee Arabella on her cross-complaint. All of the rulings on the pleadings which were unfavorable to appellants are assigned as errors.
Curtis and Arabella McCoy are son and daughter of James T., and Carrie McCoy is the wife of Curtis. Appellee James T contends that the record affirmatively shows that the finding and decree are based on the fourth and fifth paragraphs of the complaint, and hence the ruling on the demurrer to the other paragraphs is not available, even though they might not be good as against a demurrer for want of facts. We can not concur in this contention. The several paragraphs of the complaint are substantially the same, and it does not affirmatively appear from the record upon which particular paragraph or paragraphs the court based its finding. We think it is proper for us to say, in view of the prolixity of the complaint before us, that there is no defensible reason or excuse for encumbering a record by so many paragraphs of complaint, when every fact relied upon and pleaded might properly have been grouped in one, and at most two, paragraphs. Such practice is not to be commended, and is not productive of healthful results.
In the first paragraph of complaint it is alleged that on December 12, 1896, appellee James T. McCoy was the owner in fee simple of a certain described tract of land, consisting of 239 66-100 acres; that on that day he sold and conveyed the same, by warranty deed, to appellant Curtis McCoy, for the agreed price of $ 12,000, upon the following terms, viz., $ 2,000 cash, $ 1,000 to be paid by appellant Curtis to appellee Arabella McCoy, $ 2,000 as an advancement by James T. to Curtis, and the conveying by Curtis to James T. of certain described real estate of the agreed value of $ 7,000, which said real estate was to be conveyed free and unencumbered; that at the time the said Curtis agreed and promised to pay and satisfy a certain mortgage for $ 2,000 on part of the real estate he was to convey to his father; that he tendered to James T. deeds of conveyance for said real estate purporting to convey the same free and unencumbered, which appellee James T. refused to accept until the said mortgage lien should be discharged; that the said Curtis refused to pay and satisfy said mortgage, and still refuses; that said real estate has since been sold on a decree of foreclosure of said mortgage, and said Curtis has failed to pay the balance of $ 7,000 of the purchase price of the real estate conveyed to him, and that the same is due; that, after the acceptance of the conveyance to him by appellee James T., the said Curtis, on March 6, 1899, conveyed and mortgaged said real estate to his wife and co-appellant Carrie McCoy for the alleged sum of $ 7,350, due three months from date; that when said mortgage was executed to her the said Carrie had full knowledge that her co-appellant Curtis had failed and refused to pay appellees, James T. and Arabella, the $ 2,000 and $ 1,000, respectively, which he agreed to pay as a part of the purchase price for the real estate conveyed to him, and that he had failed and refused to pay and discharge the encumbrance upon the real estate which he agreed to convey to his father, and also knew that the latter would not accept a conveyance thereof until said encumbrance was discharged. It is also averred that appellant Curtis has no other property subject to execution. The prayer of this paragraph is that appellee have judgment for $ 10,000; that a vendor's lien for the same be declared; that said lien be declared superior to the mortgage of appellant Carrie; and that it be foreclosed against the real estate conveyed by James T. to Curtis.
The second paragraph is so similar to the first that we do not discover any material difference between them, and it is useless to restate its averments.
The third paragraph contains all the essential averments of the first, and some additional averments as to that part of the contract by which Curtis was to pay, as a part of the purchase money, $ 1,000 to his sister. These additional averments are not essential in determining the sufficiency of this paragraph of complaint.
As to the fourth, fifth, and sixth paragraphs, the most careful scrutiny has failed to disclose any substantial difference between them and the first. Counsel have not pointed out any difference, and in their brief, and also in oral argument, they have urged the same objections to all.
The scope and tenor of each paragraph of the complaint is to obtain a decree to enforce a vendor's lien for unpaid purchase money. The facts upon which appellee bases his right to equitable relief are fairly well pleaded, and the demurrer questions their sufficiency.
The principal objection urged to the complaint, and we think the most important one, is that it affirmatively appears that the contract relied upon was in parol, and as it was for the exchange of lands was within the statute of frauds, and for that reason not enforceable. The statute relied upon by appellant in specific terms prohibits the enforcement of parol contracts for the sale of real estate. § 6629 Burns 1901. The provisions of the statute apply with equal force to contracts for the exchange of real estate. Bradley v. Harter, 156 Ind. 499, 60 N.E. 139. Appellants' position is therefore impregnable, unless, from the facts pleaded, we can say the contract has been taken out of the statute of frauds; for as no written contract is pleaded the presumption is that it was oral. Langford v. Freeman, 60 Ind. 46; Goodrich v. Johnson, 66 Ind. 258; Carlisle v. Brennan, 67 Ind. 12.
Because a contract is, in the first instance, voidable under the statute of frauds, it does not necessarily follow that it can not be enforced, for some subsequent act of the parties may vitalize it and take it without the inhibition of the statute. Thus it has been held that when that part of the contract for the sale of lands which is within the statute is executed by the vendor, by which he vests in the vendee title, thus securing to him that for which he contracted orally, and the deed is accepted by him, he is bound for the purchase money, for the promise to pay the purchase price is not within the statute. Stephenson v. Arnold, 89 Ind. 426; Arnold v. Stephenson, 79 Ind. 126; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Sands v. Thompson, 43 Ind. 18, 22; Huston v. Stewart, 64 Ind. 388, 395; Schierman v. Beckett, 88 Ind. 52. This is not an action for specific performance, but to enforce a vendor's lien for purchase money where the vendor has in fact parted with his title, which he agreed orally to convey.
Counsel for appellant do not seriously controvert the announced rule that part performance may be sufficient to avoid the statute of frauds, but seek to parry its force and effect by asserting that the complaint does not show part performance in that it does not show an acceptance of the deed from father to son. It is urged that the mere averment that he accepted the deed is a conclusion of law and not the statement of a substantive fact. Without stopping to consider this assumption, we are clear that there is another averment in each paragraph which conclusively shows an acceptance. It is averred that after the execution of the deed from James T. to Curtis the latter executed to his wife a mortgage for $ 7,350 upon the real estate so conveyed to him. This fact, like all other facts well pleaded, is admitted by the demurrer, and, regardless of the...
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