Thompson v. Norton

• Decision Date: 31 May 1860
• Parties: Thompson v. Norton and Others
• Court: Indiana Supreme Court

14 Ind. 153

Thompson v. Norton and Others

Supreme Court of Indiana

May 31, 1860

From the Marshall Circuit Court.

The judgment is affirmed with 1 per cent, damages and costs.

C. H Reeve and J. Bradley, for appellant.

H. C Newcomb and J. S. Tarkington, for appellees.

OPINION

Worden, J.

Suit by the appellees against the appellant, upon a note for 1,000 dollars, made by the appellant to one Robert Rusk, and by him indorsed to the plaintiff. Judgment for the plaintiff.

Several errors are assigned, but the only point made in the brief of counsel for the appellant, is the ruling of the Court below in sustaining a demurrer to the fourth paragraph of his answer; hence, no other point will be noticed.

The paragraph in question alleges that, at the time of making the note, Rusk, the payee, was in possession of certain real estate in the town of Plymouth, in the said county, which he held by virtue of a title-bond, before then executed to him by one Nolan, upon which real estate Rusk had erected buildings of the value of 4,000 dollars; that Rusk sold said real estate and improvements to the defendant, for the sum of 4,000 dollars, and assigned said title-bond to the defendant and agreed to deliver the possession of said real estate and improvements to the defendant, on the first day of April, 1857, which agreement was in writing, and a copy set out; that, in consideration thereof, the defendant paid to said Rusk the sum of 700 dollars, and gave his note for 300 dollars, which has been since paid, and also gave the note sued on, and two other notes, each for 1,000 dollars; that he has paid on the contract 1,300 dollars, which is more than the full value of the real estate, without the improvements; that Rusk did not deliver to the defendant the possession of said real estate and improvements, on the first day of April, 1857, or at any other time, but on the contrary thereof, before the first day of April aforesaid, and while said premises were in the possession of Rusk, all of said improvements, of the value of 4,000 dollars, were wholly destroyed by fire, wherefore the consideration of the note has failed.

So much of the agreement between Rusk and the defendant as is material to the question involved, is as follows, viz;

"This agreement witnesseth, that Robert Rusk has this day sold to James Thompson the lot upon which his building is now situate," &c., (describing it.) "Said Rusk holds the same by title-bond from one C. Nolan, which has been by him assigned to said Thompson." After several stipulations as to the consideration of the sale, specifying the notes given by Thompson, the agreement proceeds: "Said Thompson is to procure from said Nolan a deed for said land immediately, and so soon as he receives the same, he is to execute to said Rusk a mortgage thereon, to secure the payment of said notes above specified. The possession of said property is to be delivered to said Thompson on the first day of April, 1857; from that date, the said Thompson is to have the use and benefit of all rents accruing from said premises, and due on said leases thereafter, said Thompson taking the premises, and the leases of the various tenants now occupying the same, upon the same terms and restrictions contained in in said leases, releasing said Rush from all liability thereon after that date."

It is insisted by the appellant, that the loss of the building under the circumstances, should fall upon Rusk, and that he, the appellant, cannot be required to pay more than the lot is worth without the building. He insists that the sale and transfer were not complete; that the contract was executory, as the possession was to be...