Puterbaugh v. Puterbaugh

• Decision Date: 08 March 1892
• Docket Number: 15,608
• Citation: 30 N.E. 519,131 Ind. 288
• Parties: Puterbaugh v. Puterbaugh
• Court: Indiana Supreme Court

30 N.E. 519

131 Ind. 288

Puterbaugh v. Puterbaugh

No. 15,608

Supreme Court of Indiana

March 8, 1892

Petition for a Rehearing Overruled April 28, 1892.

From the Cass Circuit Court.

Judgment affirmed.

D. C Justice, S. T. McConnell and A. G. Jenkins, for appellant.

D. D Dykeman, W. T. Wilson, G. C. Taber and M. Winfield, for appellee.

OPINION

Elliott, C. J.

The appellee alleges, in the second paragraph of his complaint, that he is the nephew of Henry Puterbaugh, deceased, and had lived with him, as his son, for twenty-four years; that the appellant is the sole heir of the deceased, and claims to be the owner of the land described in the complaint. The appellee also avers that Henry Puterbaugh, being then the owner of the land, entered into a contract with the appellee, and that the contract was, in substance, this: "The said Henry Puterbaugh, in consideration of love and affection, and for the further consideration that this plaintiff would assist with his money, time and labor, in the erection of a house and barn upon the premises hereafter named, and would take possession, when married, and occupy the same, and make valuable and permanent improvements; that he, the said Henry Puterbaugh, would convey to him the southeast quarter of Wapapashee Reserve. He, the said Henry Puterbaugh, further stipulated that the plaintiff should pay him for one-half of the crops that might grow upon said premises, or be raised by this plaintiff upon said eighty acre tract of land." Following the statement of the terms of the contract are these allegations:

"That this plaintiff then and there accepted said proposition and assisted with his labor, time and money in the erection of said barn and house, and afterwards married, and in pursuance of said contract, and relying upon the same, moved upon said premises and took possession of the same, and under said contract, and relying upon the same, has ever since occupied and held possession of said lands, turning over one-half of the crops as agreed; that he has made lasting and valuable improvements, besides said house and barn, since he has been in possession of said premises, in reliance upon said contract, in this: he has dug and walled a well, graded a lot, on which the house stands, made walks, built permanent and lasting fences, set out shade trees which are now growing thereon, and has changed the fences so as to separate the said eighty acres of land from the other lands of the said Henry Puterbaugh, all with the knowledge and consent of the said Henry Puterbaugh, and upon the faith of the aforesaid contract; that the said Henry Puterbaugh, during his lifetime, frequently promised to convey by deed to this plaintiff said tract of land in fee simple, but before he carried out said intention he suddenly and unexpectedly died, intestate, without having executed any deed of conveyance to this plaintiff for the premises; that the plaintiff has demanded a deed of the defendant, which she has refused, and refused to carry out the contract, and denies the contract; that the said defendant is now claiming title to the aforesaid lands claimed by the plaintiff, adverse to the title of this plaintiff; that said claim of title on the part of the defendant is without right and unlawful, and casts a cloud upon this plaintiff's title."

There was no such error in overruling the motion to make the complaint more specific as entitles the appellant to a reversal of the judgment. The complaint shows the contract and the consideration, and, as the action is not to recover money, there was no necessity for giving the items of the consideration. The complaint alleges that the appellant promised to convey the land to the appellee, and with sufficient certainty shows the consideration for the promise. The time for making the conveyance was not material, inasmuch as the complaint shows that prior to the death of the vendor the purchaser had done all that he had agreed to do.

There can be no doubt that payment of the purchase-price of land, whether in money or in property, is not sufficient to take an oral contract for the sale of land out of the statute of frauds. Felton v. Smith, 84 Ind. 485; Wallace v. Long, 105 Ind. 522, 5 N.E. 666; Green v. Groves, 109 Ind. 519, 10 N.E. 401; Edwards v. Estell, 48 Cal. 194. If the appellant's counsel are right in asserting that taking possession of land pursuant to the terms of the oral contract has no greater effect than paying the agreed consideration in money, property or services, then this complaint is bad, because the contract is within the statute. But we think it clear that the position of counsel is untenable. It is quite plain that possession not taken under the contract would be wrongful, since no one can rightfully take possession of another's land without his express or tacit consent. If there is a contract and the possession is rightful, the possession must be pursuant to the contract and in performance of it, for if it were not, it could not be rightful. Every contract for the conveyance of lands wherein provision is made for possession, implies that the possession shall be taken, if taken at all, under the contract. If it were otherwise, there could never be a rightful possession of land under an oral contract for its conveyance. The argument of counsel that, as possession was taken as part payment of the consideration, it is ineffectual, is plausible, but unsound. The possession of land under a contract is a performance of the contract on the part of the purchaser, and must, of necessity, always be in some sense a payment of consideration, for otherwise it would be impossible to regard it as part performance. If not regarded as part performance it must be so regarded, for the reason that the purchaser did what he was required to do under the contract. We do not deem it necessary to cite authorities in support of our conclusion that the fact that the purchaser agreed to take possession as part of the consideration for the promised conveyance does not destroy the effect of possession as a part performance, taking the case out of the statute of frauds, for we think that every decided case which asserts that possession is such part performance as will take a case out of the statute expressly or impliedly affirms the same doctrine. It is the open, clear and strong character of the act of taking possession of land as owner, rather than the reason for taking possession, that makes it such part performance as takes the case out of the statute. Johnston v. Glancy, 4 Blackf. 94; Atkinson v. Jackson, 8 Ind. 31; Cutsinger v. Ballard, 115 Ind. 93, 17 N.E. 206.

The law is that possession of the land embraced in the contract must be taken under its provisions, or the statute will defeat an enforcement of the contract. If, therefore, it be true that the complaint does not show that possession was taken under the contract, this action must fail. But it is not true that possession was not so taken, for the complaint avers and the demurrer admits, that "the plaintiff, relying upon the contract, moved upon said premises, and took possession of the same, and under said contract, and has ever since occupied and held possession of said land." The cases of Horn v. Godrick, 33 N.H. 32, Eckert v. Eckert, 3 Pa. R. 332, Poorman v. Kilgore, 2 Casey, 365, and Cox v. Cox, 2 Casey, 375, are not in point, for here there was a contract founded upon a valuable consideration for the conveyance of a particular parcel of land, and it was under this contract, and not because of kinship, that the appellee entered into possession of the land and made improvements.

The fact that affection formed an element of the consideration does not impair the force of the contract. The parties agreed upon a consideration valuable in its nature, and their agreement as to its sufficiency the courts will not disturb, since to do so would be to make a contract for parties capable of contracting. Where parties agree upon the adequacy of a valuable consideration, their agreement is conclusive in the absence of fraud or mistake. Wolford v. Powers, 85 Ind. 294 (44 Am. R. 16); Colt v. McConnell, 116 Ind. 249, 19 N.E. 106 (252), and cases cited.

Under the system which prevailed before the adoption of the code, it was generally held that a plaintiff seeking relief upon an oral contract for the sale of land must allege that he could not be compensated in damages resulting from a breach of the contract. But this was true only where purely equitable relief was sought, and sought in a such an averment was necessary was that without it a court of chancery had no jurisdiction. That reason does not exist where there is only one form of action, and where equity and law jurisdiction reside in the same court. We have examined many of our cases, and we do not find that there was such an averment in any complaint, in an action to quiet title, or even in a suit for specific performance. But, as we shall presently show, this case is not one of exclusively equitable cognizance, but is a statutory action.

The question whether an action to quiet title is on that can be tried by a jury as a matter of right is presented by the record. The proper demand for a trial by the court was made the demand refused, exception entered to the ruling, and the proper specification embodied in the motion for a new trial. The court below did not merely submit the case to the jury to find facts as advisory, but submitted it to the jury to determine finally all questions of fact. If the action is one wherein a jury trial is demandable as a matter of right, the ruling was correct; if not, it was wrong. As we have already indicated, our opinion is that there is a right to trial by jury in the statutory action to quiet title to land. We preface...