Moore v. Cencion

• Decision Date: 01 December 1942
• Docket Number: 16940.
• Citation: 44 N.E.2d 1004
• Parties: MOORE et al. v. CENCION et al.
• Court: Indiana Appellate Court

44 N.E.2d 1004

MOORE et al. v. CENCION et al.

No. 16940.

Appellate Court of Indiana, in Banc.

December 1, 1942

Appeal from Lake Superior Court; Paul T. McCain, Special Judge.

John M. Stinson, Harold J. Douthett, and Herbert T. Leasure, all of Hammond, for appellants.

Forrest E. Gantenbein, of Hammond, for appellees.

FLANAGAN Presiding Judge.

On September 1, 1931, appellants entered into a written contract with appellees to sell them the involved real estate for $2,350.

On March 8, 1934, appellants conveyed the real estate to appellees by warranty deed which recited a consideration of $1 and other valuable consideration, and which recited further that the conveyance was subject to certain taxes and assessments and the balance of $961.16 of a mortgage given by the owners previous to appellants to a loan company. Nothing was recited as to any balance of the purchase price being due appellants. However, according to the evidence there was a verbal agreement that appellees were to pay the balance of the purchase price amounting to $1,000 and were to give appellants a second mortgage to secure such payment. The second mortgage was never given.

On December 23, 1940, appellants brought this action against appellees to recover such balance and to foreclose a vendor's lien therefor.

Appellees answered in two paragraphs, (1) alleging payment, and (2) pleading the six-year statute of limitations. There is no evidence of payment and we are here concerned only with the issues made by the second paragraph of answer to which appellants filed a reply stating that the action was one to enforce a vendor's lien and that the fifteen-year statute Burns' Ann.St. § 2-603, applied and that it was upon a written contract which made the six-year statute inapplicable.

The finding and judgment of the trial court was for appellees. Appellants' motion for a new trial was overruled and that action of the trial court is the sole error assigned here. The grounds of the motion for a new trial not waived are, (1) the decision of the trial court is not sustained by sufficient evidence, and (2) is contrary to law.

Under each of the specifications of the motion for a new trial the questions presented are:

1. Is the action based upon a written or a verbal contract?

2. If the action is based upon a verbal contract does the six-year statute of limitations or the fifteen-year statute apply?

The general rule is well established that by the execution of the deed, the preliminary agreement, whether oral or in writing is executed and in the absence of fraud or mistake all preliminary negotiations in reference to the deed are merged in it. Turner v. Cool, 1864, 23 Ind. 56, 85 Am.Dec 449; Essex v. Hopkins, 1911, 50 Ind.App. 316, 98 N.E. 307; Carr, Adm'r v. Hays, 1886, 110 Ind. 408, 11 N.E. 25; Cole v. Gray, 1894, 139 Ind. 396, 38 N.E. 856; Wayne International Building & Loan Ass'n v. Beckner, 1921, 191 Ind. 664, 134 N.E. 273; Phillbrook v. Emswiler, 1883, 92 Ind. 590; Hardin v. Sweeney, 1913, 54 Ind.App. 614, 103 N.E. 115; Doty v. Sandusky Portland Cement Co., 1910, 46 Ind.App. 440, 91 N.E. 569.

It is true that when the preliminary written contract for the sale of real estate contains covenants which are collateral and independent in addition to the one for the execution of the deed, the contract in regard to them does not merge in the deed. Doty v. Sandusky Portland Cement Co., supra. But here the only covenant of the preliminary contract sought to be enforced is the covenant to pay a certain purchase price for the deed. Such a covenant is not collateral and independent so as to take it out of the general rule regarding merger.

This action then could not be based upon the written preliminary contract but must be based upon the verbal agreement made at the time of the execution of the deed to pay the balance of the purchase price...