Puterbaugh v. Puterbaugh

• Citation: 131 Ind. 288,30 N.E. 519
• Parties: PUTERBAUGH v. PUTERBAUGH.
• Decision Date: 08 March 1892
• Court: Supreme Court of Indiana

131 Ind. 288
30 N.E. 519

PUTERBAUGH
v.
PUTERBAUGH.¹

Supreme Court of Indiana.

March 8, 1892.

Appeal from circuit court, Cass county; D. B. MCCONNELL, Judge.

Action by Horace Puterbaugh against Margaret Puterbaugh to quiet title. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

D. C. Justice, McConnell & Jenkins, for appellant. Dykeman, Wilson, Taber & M. Winfield, for appellee.

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 24 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 life 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 life–time, 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

[30 N.E. 520]

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. Rep. 666; Green v. Groves, 109 Ind. 519, 10 N. E. Rep. 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 regarded as part performance, it must be so regarded for the reason that the purchaser did what he was required to do under his contract. We do...