Puterbaugh v. Puterbaugh
| Decision Date | 24 June 1893 |
| Docket Number | 689 |
| Citation | 34 N.E. 611,7 Ind.App. 280 |
| Parties | PUTERBAUGH, ADMINISTRATRIX, v. PUTERBAUGH |
| Court | Indiana Appellate Court |
7 Ind.App. 280. At 302.
Original Opinion of March 31, 1893, Reported at: 7 Ind.App. 280.
Petition for rehearing overruled.
OPINIONON PETITION FOR A REHEARING.
Counsel for appellant have filed a lengthy and an earnest petition for a rehearing in this case. We can not, within reasonable limits, fully again review all the questions therein discussed. Suffice it to say that as to the first paragraph the court was not required to pass upon any other question than the one on which the case was reversed. If the judgment on that paragraph had been affirmed, then we should have considered and decided every material question presented.
Although we discussed the question arising in the record on the first paragraph, in some respects, more at lengh than was necessary, yet it occurs to us that there should be no difficulty in reaching a correct conclusion as to what has been decided in relation thereto in the original opinion. As to this paragraph, the judgment was reversed because of error in giving the third instruction. We failed to discover any prejudicial error in any of the other instructions, so far as disclosed by the record as it comes to us on this appeal, but what we have said concerning these instructions does not necessarily imply that they may be correct statements of the law of the case on another trial.
Neither have we decided that the evidence was sufficient to sustain the verdict on this paragraph. If the case is retried on that paragraph, appellee will have to prove to the satisfaction of the jury, under proper and correct instructions of the court as to the law applicable and pertinent to the case, that the alleged services of appellee were rendered either under an express contract or under sufficient of the circumstances mentioned and set out in the first paragraph as are necessary to raise the presumption of an agreement to pay therefor. Owing to the family relation existing between the parties the law does not imply a promise to pay for the services because of the rendition thereof. The presumption is that appellee was not entitled to compensation for such services. It is incumbent on him to prove such facts and circumstances as will be sufficient to overcome this presumption and to raise the counter presumption of an agreement on the part of his uncle to pay for such services. If this is not done, he must necessarily fail.
It is insisted that, in any event, the agreement of Henry Puterbaugh to convey the eighty acres to Horace, his entry into possession, the improvements made thereon and the payment in full, by him, of the agreed price, did not create any obligation which he could enforce against the estate of Henry.
We can not agree with counsel that, as to the inchoate interest of Margaret in the real estate, the contract and acts of Horace averred in the second paragraph did not, and could not, amount to such performance as to take the case from the operation of the statute, and, therefore, as to one-third of the land, Horace is wholly without remedy, and that he is not entitled to recover the purchase price he paid therefor, or the value of the land of which he has been deprived. The contention of counsel is "that the predominant idea and principle running through the Indiana cases is that liability can only arise from positive stipulation, and that in the absence of fraud no implied covenants are imported into any agreement in relation to lands."
In this case, however, there was, if we may use the expression, a "positive stipulation" under the allegation of the complaint, on the part of Henry, to convey the eighty acres of land to Horace.
It is strenuously urged that the court erred in holding that where the vendor fails to carry out his contract to convey a portion of the real estate sold under the circumstances alleged in the second paragraph of the complaint in this case, the vendee may recover, in damages, the value of the portion of the land not conveyed.
It is insisted that we have announced some propositions contrary to the law as it exists in the decisions of this State.
In Bethell v. Bethell, 92 Ind. 318 (325), the action was on the covenants in the deed. The court there said: "It is the general rule that in cases where there is no covenant and no fraud, a vendee can not recover, although there is a complete failure of title."
In Stratton v. Kennard, 74 Ind. 302, S. executed his note to executors of J. for real estate conveyed to him by them. In a suit on the note, it was held that in the absence of covenants of warranty, or for title, the defendant could not plead failure of title as a defense to the note.
In Johnson v. Houghton, 19 Ind. 359, it was held that on the assignment of a land office certificate issued by the government, there was no implied warranty of the title.
In Atherton v. Toney, 43 Ind. 211, the decision was that the assignee of an equity of redemption who accepts a deed without covenants takes it charged with the mortgage debt.
In Johnson v. McCabe, 37 Ind. 535, a deed for a patent right had been executed, in which there was no warranty. As a defense in a suit for the purchase-money, the defendant relied upon an alleged breach of the warranty. The court held that the purchaser was bound by the deed.
Other similar cases are cited which either relate to conveyances that have been perfected by deed or to conveyances of personal property. These cases, as we view them, are not in point here.
In Sheets v. Andrews, 2 Blackf. 274, the purchaser recovered in the court below. The judgment was reversed because the action was commenced without demand having been made. The court said, however, in relation to the measure of damages, as gratis dictum, in conclusion "It appears to us, that where no fraud is alleged, the purchase...
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