Tewksbury v. Howard

• Decision Date: 08 May 1894
• Citation: 37 N.E. 355,138 Ind. 103
• Parties: TEWKSBURY v. HOWARD et al.
• Court: Indiana Supreme Court

138 Ind. 103

37 N.E. 355

TEWKSBURY

v.HOWARD et al.

Supreme Court of Indiana.

May 8, 1894.

Appeal from circuit court, Wells county; J. S. Dailey, Judge.

Action by Jane Howard and others against Hiram Tewksbury to enforce specific performance of a contract to purchase lands. From a judgment for plaintiffs, defendant appealed. Affirmed.

Sharpe & Sturgis and Wilson & Todd, for appellant. Mock & Simmons and Morris, Bell, Barrett & Morris, for appellees.

HACKNEY, J.

This was a suit by the appellees to enforce specific performance of a contract in writing, as follows: “Article of agreement made and entered into on the 2d day of June, 1890, by and between L. L. Howard, of the first part, and Hiram Tewksbury, of the second part, witnesseth, that said first party has this day sold to the said second party the following described real estate: The east half of the southeast quarter, and the east half of the northeast quarter, of section thirty-six (36), township twenty-five (25), range eleven (11) east, for the sum of eight thousand dollars ($8,000), one-third to be paid cash down, one-third in six months, and one-third in eighteen months. The party of the first part agrees to make the party of the second part a good warranty deed as soon as due diligence will permit. The party of the second part agrees to give his obligations for deferred payments, with interest at the rate of six per cent. per annum, and one-third in cash, on receipt of the deed. Witness our hands and seals this day and year above written. L. L. Howard. Hiram Tewksbury.” The amended complaint, upon which there was issue and trial, was in three paragraphs. Demurrers were overruled, issues formed, trial, and finding against the appellant.

The first question upon the sufficiency of the several paragraphs of complaint arises upon the statute of frauds. As seen from the contract, the county and state of the location of the land are not named, and it is insisted that this omission is fatal, and may not be cured by allegations of ownership, possession, situation of the parties, and dealings with reference to a tract of that description within the county of Wells and state of Indiana. The rule, often recognized in this state, is that, where the description given is consistent, but incomplete, and its completion does not require the contradiction or alteration of that given, nor that a new description should be introduced, parol evidence may be received to complete the description and identify the property. Colerick v. Hooper, 3 Ind. 316;Maggart v. Chester, 4 Ind. 124;Torr v. Torr, 20 Ind. 118;Guy v. Barnes, 29 Ind. 103;Baldwin v. Kerlin, 46 Ind. 426;Calton v. Lewis, 119 Ind. 181, 21 N. E. 475;White v. Stanton, 111 Ind. 540, 13 N. E. 48;Weaver v. Shipley, 127 Ind. 526, 27 N. E. 146. It is so held elsewhere, and is applied where the state, county, city, or town has been omitted. Briggs v. Munchon, 56 Mo. 470;Hurley v. Brown, 98 Mass. 545;Mead v. Parker, 115 Mass. 413;Atwater v. Schenck, 9 Wis. 160. See, also, Reed, St. Frauds, 414, 416; Brown, St. Frauds, 393; and Wat. Spec. Perf. 322. Extraneous facts are alleged in each paragraph, sufficient to identify the land described in the contract. We do not place our conclusion upon the rule adhered to in Noland v. State, 115 Ind. 529, 18 N. E. 26;Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107;Stockwell v. State, 101 Ind. 1; and Smith v. Clifford, 99 Ind. 113,-holding that location may be inferred from the residence of the parties, the place of acknowledgment, and the like, appearing upon the face of the instrument. Here, the description is full and specific, omitting only the state and county; and when we apply our knowledge that there is but one such tract, as to section, township, and range, in the state of Indiana, we have but to identify the tract described as within the state of Indiana. This, under the rule we have stated, may be done. The cases urged as supporting the appellant's contention upon this point are Miller v. Campbell, 52 Ind. 125, where the only description was, “one hundred and twenty acres of land in Shannon county, Missouri;” Baldwin v. Kerlin, supra, where no description was given, and where an erroneous location was stated, and was sought to be modified; Pulse v. Miller, 81 Ind. 190, where no description whatever was given. That these cases do not apply here is apparent from a mere statement of their character, and illustrate the rule that a description cannot be supplied by parol.

It will be observed that the contract is signed by L. L. Howard, and not by Jane, Samuel, Harvey, Robert G., Thomas B., and William Howard, who are appellees, and were, with the appellee Lewis L. Howard, plaintiffs in the circuit court. This fact is said to vitiate the contract, under the allegations of the several paragraphs of the complaint that, at the time of the making of said contract, all of the appellees owned said lands. But it is further alleged that the contract was executed by said Lewis L. Howard as the authorized agent for and on behalf of his coappellees; and in denial of the force of this allegation appellant asserts that the contract was required to be in the name of the principals, and to disclose the relation of the agent to the contract, and that the true relation could not be shown by parol. This contention has been held to be unavailing in a case involving this exact question. Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345. See, also, in addition to the authorities cited in the case last referred to, the case of Briggs v. Munchon, supra. It may be regarded as doubtful if the appellant should be permitted to deny the authority of the agent or the existence of the agency, since it was made to appear, further, that the appellees executed sufficient deeds of warranty to the appellant, and not only tendered them, but took them into court with their complaint.

Objection is made to the second paragraph of complaint because of the allegation therein that Robert G. Howard, appellees' ancestor, had owned the lands, and had died testate, devising the lands to the appellees, and that he left other heirs than the appellees, while there is no allegation of the probate of the will of said Robert G. Howard. There are other sufficient answers to this objection, but we deem it ample to say that the pleading shows the execution of deeds to the appellant by all of the heirs and devisees of the said Robert G. Howard, thereby granting a title complete, without regard to the will. However, it appears, from the record and special finding of facts, that the judgment of the court was upon the facts pleaded in the amended third paragraph of complaint, and in that paragraph the probate of the will and the full payment of all of the debts of the estate are averred. This being true, if the third paragraph was sufficient, no error could be predicated upon the ruling upon demurrer to the second paragraph of complaint Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874;Railway Co. v. Gaines 104 Ind. 526, 4 N. E. 34, and 5 N. E. 746; Association v. Black (Ind. Sup.; filed Dec 15, 1893) 35 N. E. 829.

An objection to the third paragraph of complaint, in addition to those already considered, is that it does not allege that there was no administration of the estate of said Robert G. Howard. The presence of such an allegation could lend no strength to the title of the appellees, and its absence betrayed no weakness in that title. The rule of the case of Finnegan v. Finnegan, 125 Ind. 262, 25 N. E. 341, where an heir sought to recover a debt due to his ancestor's estate, has no application here. There, the absence of administration was held necessary to support the heir's title to the claim as against the senior title to an administrator on behalf of creditors. When the debts of an estate are paid, no claim of creditors exists for enforcement against the land. Another objection to this paragraph of the complaint, and the other two paragraphs, is that it is alleged that, at the request of the appellant, several deeds were executed by the heirs and devisees of said Robert G. Howard to the appellant and his wife, instead of a joint deed, or a deed from Lewis L. Howard alone, after procuring conveyances to himself, and instead of a deed or deeds to the appellant alone. It is true that by the terms of the contract a conveyance was to be made by L. L. Howard to Hiram Tewksbury; but the objection that the conveyance was not so made does not affect the validity of the contract, nor do the request of the appellant, and the compliance therewith, constitute a parol modification of the contract, as insisted. These acts of the appellees were but an effort to comply with the terms of the contract, and were performed in this manner at the instance of the appellant; and he can no more complain of the waiver of his rights under the contract, and an effort at his request to convey the lands as he desired, than he could deny the payment of the purchase money under the contract if he had procured the conveyance to be made to another. Brown, St. Frauds, §§ 424-426.

The appellant further complains of the action of the trial court in sustaining appellees' demurrer to his third and fourth affirmative answers to the complaint. These answers alleged, as said by appellant's counsel in their brief, “that appellees had not a...