Percifield v. Black

• Decision Date: 07 October 1892
• Citation: 132 Ind. 384,31 N.E. 955
• Parties: Percifield et al. v. Black.
• Court: Indiana Supreme Court

132 Ind. 384

31 N.E. 955

Percifield et al.

v.Black.

Supreme Court of Indiana.

Oct. 7, 1892.

Appeal from circuit court, Brown county; N. R. Keyes, Judge.

Action by Gilbert Black against Sabra Percifield and another for specific performance of a contract to sell defendant's land. From a judgment overruling a demurrer to the complaint, defendants appeal. Reversed.

R. L. Coffey, F. L. Hord, and M. D. Emig, for appellants.

OLDS, J.

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 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 were 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 incumbrance of her land by her husband, and to protect her land from liability for the debts of the husband. Section 5116, Rev. St. 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 incumber 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...