Shirk v. Stafford
Decision Date | 26 May 1903 |
Docket Number | 4,357 |
Citation | 67 N.E. 542,31 Ind.App. 247 |
Parties | SHIRK v. STAFFORD |
Court | Indiana Appellate Court |
From Rush Circuit Court; Douglas Morris, Judge.
Action by Nannie R. Shirk against Frank M. Stafford. From a judgment for defendant, plaintiff appeals.
Affirmed.
J. Q Thomas, G. H. Gifford and G. J. Gifford, for appellant.
Reuben Conner and Lon Conner, for appellee.
ROBY J. Black, J., absent. Robinson, C. J., Wiley, Comstock and Henley, JJ., concur.
The trial court made a special finding of facts. It appears therefrom that the appellant was at the time of the trial, and had been for twenty-two years prior thereto, a married woman. On January 18, 1897, she was the owner in fee of a tract of land situate in Fayette county and particularly described in the finding. On such day she and the appellee entered into a written contract, in terms as follows:
Appellee executed his notes as agreed therein, and took possession of said land on said day. There was no other consideration for the notes than as above set out. The third and fourth notes of the series are sued upon. Appellee continued in possession of the land until the fall of 1900, when, without notice, he abandoned it, since which time appellant has repaired some of the fences thereon.
When the action was commenced appellee had in his possession corn worth $ 154, and wheat worth $ 100, grown on said land, which he has since sold and converted. The annual rental value of the land during the four years it was held by the appellee was $ 180. Before the bringing of the suit he paid the first two notes of the series, with accrued interest, $ 312 on other notes, and $ 67.53 taxes. Twenty-four dollars interest had been paid on the notes in suit, and there was due and unpaid thereon $ 450.66. Appellant did not execute any bond, as in the contract stipulated, prior to the commencement of the action; but during its pendency she brought a sufficient bond into court and tendered the same. No demand was made upon her for a bond. Had there been she would have executed such bond. The contract was written by her husband, who signed her name to the same as her agent. Upon these facts the court concluded the law to be with appellee. Appellant excepted to the conclusion and has assigned error thereon.
The pleadings are voluminous, and a statement of them is not necessary to a decision of this appeal upon its merits. Appellee claims that the contract was void, the notes without consideration, and that the rental value of the land, for which he was liable, has been paid. The appellant claims that the notes were given in consideration, among other things, of an agreement to execute a valid bond, and therefore there was no want, but, at most, a failure of consideration; that possession of the land was delivered; that neither it nor the title conveyed by the wife's contract has been disturbed, and that want of title is no defense to purchase-money notes while the grantee holds undisturbed possession. A married woman has no power to encumber or convey her lands, except by deed in which her husband shall join. § 6961 Burns 1901; Luntz v. Greve, 102 Ind. 173, 26 N.E. 128; Cook v. Walling, 117 Ind. 9, 2 L. R. A. 769, 10 Am. St. 17, 19 N.E. 532.
Her contract to convey was void, as her deed would have been. Percifield v. Black, 132 Ind. 384, 31 N.E. 955; Bartlett v. Williams, 27 Ind.App. 637, 60 N.E. 715; Parks v. Barrowman, 83 Ind. 561.
The contract being void as against her, and incapable of...
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