Percifield v. Black
| Decision Date | 07 October 1892 |
| Docket Number | 15,698 |
| Citation | 31 N.E. 955,132 Ind. 384 |
| Parties | Percifield et al. v. Black |
| Court | Indiana Supreme Court |
From the Brown Circuit Court.
Judgment reversed, with instructions to sustain the demurrer to the complaint.
F. T Hord, M. D. Emig and R. L. Coffey, for appellants.
This is an action by the appellee against the appellants, who are husband and wife, for the specific performance of a parol contract for the sale of the wife's land.
The complaint alleges that the husband, as the agent of the wife and having full power to do so, contracted with the appellee for the sale of the wife's land, and that the husband himself joined in the contract; that the agreed price was $ 412.50. As part payment appellee assumed the payment of a mortgage on the land for $ 200; that the appellee took possession in pursuance of the contract, repaired the buildings, made fence, put out an orchard, and made other lasting and valuable improvements, with the knowledge and consent of appellants; paid the mortgage, and paid appellants $ 154; that after receiving the money appellants averred their willingness to convey the land, and appellee made other lasting and valuable improvements, and tendered appellants the balance of the purchase-money, and demanded a conveyance; that appellants refused, and still refuse, to convey; that appellee is now ready and willing to pay any sum the court may find due and order paid in a decree ordering a conveyance, and offers to bring the money into court, and prays for a judgment and decree ordering the appellants to execute a deed to the appellee for the land, and for all proper relief.
To this complaint a demurrer for want of facts was filed and overruled, and this ruling is assigned as error.
It not being averred that either the authority of the husband or the contract of sale was in writing, it will be presumed that they rested in parol. Pulse v. Miller, 81 Ind. 190; Carlisle v. Brennan, 67 Ind. 12; Langford v. Freeman, 60 Ind. 46.
It is the policy of the law of this State to protect the wife against the sale or encumbrance of her land by her husband, and to protect her land from liability for the debts of the husband.
Section 5116, R. S. 1881, provides that the wife's lands shall not be liable for the debts of her husband, and that the wife shall have no power to encumber or convey her lands except by deed in which her husband shall join.
Section 5117 declares that the wife shall not enter into any executory contract to sell, convey or mortgage her real estate; nor shall she convey or mortgage the same unless her husband join in such contract, conveyance or mortgage; but it provides that she may be bound by estoppel in pais, like any other person.
The statute of frauds (section 4904) declares that no action shall be brought upon any contract for the sale of lands unless such contract, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, etc.
It is manifest that...
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