Thompson v. Reising
| Decision Date | 03 December 1943 |
| Docket Number | 17083. |
| Citation | 51 N.E.2d 488,114 Ind.App. 456 |
| Parties | THOMPSON v. REISING. |
| Court | Indiana Appellate Court |
William D. Hardy, of Evansville, for appellant.
John E. Early, of Evansville, for appellee.
In this action the appellee recovered judgment in the sum of $950 against the appellant for the breach of a contract to convey real estate. The sole error assigned and relied upon for reversal is the court's action in overruling the appellant's motion for a new trial.
As the major questions presented by this appeal involve the sufficiency of the evidence to support the jury's verdict and the validity of the judgment rendered thereon, a review of the controlling facts is necessary. From the briefs of counsel and the transcript of the record we find evidence tending to prove the following statement of facts:
On May 7th, 1937, the appellant, believing himself to be the owner of Lot 19 and the adjoining five feet of Lot 20 in Block 11 North Park Addition to the City of Evansville, Indiana entered into a written contract with the appellee whereby he agreed to sell and she agreed to buy said real estate for the sum of $2,500 upon a down payment of $500, and the remainder of the purchase price at the rate of $25 per month with six per cent interest on unpaid balances, payable semi-annually. The real estate described is improved by a one-story frame house of the bungalow type, the west wall of which is five inches east of the west line of Lot 19. On the west side of the house there is a basement window or coal chute and a water tap for hose connection. Without access to these conveniences there is no method of getting coal into the basement except by carrying it through the house and down the stairs, nor is water available for its many outside uses. There is a sidewalk from the street to the rear of the house along the west side thereof, running past said coal chute and water tap, and lying entirely on the east five feet of Lot 20. Prior to the execution of the contract above described the appellee visited the property in question, accompanied by the appellant's broker, who indicated the boundary lines of the property to be sold as including the five foot strip off Lot 20. The appellee went into possession of all the property, so shown to her and so described in the contract of purchase, in September, 1937, and still remains in possession thereof. In October of that year she inquired as to the possibility of obtaining a mortgage exemption in reduction of the taxes she was required to pay under the terms of the contract, and was informed that she could not do so because she did not have title to the property. She thereupon explained her wish in the matter to the appellant, and asked him if he would give her a deed to the property involved and take a mortgage back for the then unpaid balance of the purchase money in order that she might obtain such exemption. The appellant replied that he would give her a deed to Lot 19 but not to the five foot strip off Lot 20 as he was having some difficulty over that, but would straighten the matter out when he returned from Florida and would then convey the same to her. He further said that the contract must remain in full force and that the appellee should continue making payments as the terms thereof provided. This being understood, the appellant caused a warranty deed to Lot 19 to be prepared and delivered to the appellee and took her note for the then unpaid balance of the purchase money secured by a mortgage on the property conveyed. This deed contains no reference to the preliminary contract of sale and contains no stipulations, reservations, collateral agreements, or statements of any kind as to the understanding of the parties in respect to the five foot strip off Lot 20. Upon his return to Evansville some months later the appellant refused to convey the five foot strip in controversy, and upon the completion of payment of the purchase price as per the terms of the contract, the appellee brought this suit. As to many of the facts above outlined, there is sharp dispute in the evidence, but we have adopted and set out that version thereof most favorable to the appellee and to the jury's verdict.
The appellant's first contention is that the facts as above indicated show a written agreement to convey certain real estate, a part of which was conveyed to the appellee in performance of said contract. That she accepted the deed of conveyance with full knowledge that no part of Lot 20 was included therein, and that the statute of frauds prevents her recovery upon an oral agreement to convey the same to her at a later date and by separate deed. It is true that no action can be brought upon any contract for the sale of lands unless the promise, contract or agreement, is in writing, except under circumstances not pertinent to this inquiry, Section 33-101, Burns' 1933, Section 8363, Baldwin's 1934, and appellant's position would be unassailable if this were a suit upon an oral contract. It is apparent, however, that the paragraph of the complaint upon which the case was tried is not founded upon the appellant's oral agreement to convey the land in question after his return from Florida, but upon his original written contract which is specifically pleaded and a copy thereof attached to the complaint and made a part thereof. This, we assume, would not have been done had the appellee sought to rely on the oral agreement, and any reference thereto in the complaint is merely in explanation of her acceptance of a deed conveying less than all the land for which she contracted. The action being on a written contract signed by the appellant, it is not barred by the statute of frauds.
But the appellant urges if the action is on the written contract, it being prior to the acceptance of a deed conveying less land than called for by said contract, the deed became the final repository of the terms of the contract between the parties, and no action will lie on the contract. This contention is based on the rule of merger which may be stated broadly as follows: In the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee's acceptance of the conveyance in performance thereof. Chapman v. Long, 1858, 10 Ind. 465; Turner v. Cool, 1864, 23 Ind. 56, 85 Am.Dec. 449; Coleman v. Hart, 1865, 25 Ind. 256; Phillbrook v. Emswiler, 1883, 92 Ind. 590; Carr v. Hays, 1887, 110 Ind. 408, 11 N.E. 25; Smith v. McClain, 1896, 146 Ind. 77, 45 N.E. 41; Horner v. Lowe, 1902, 159 Ind. 406, 64 N.E. 218; Wayne International Bldg. & L. Ass'n v. Beckner, 1922, 191 Ind. 664, 134 N.E. 273; Williams v. Frybarger, 1893, 9 Ind.App. 558, 37 N.E. 302; Beasley v. Phillips, 1898, 20 Ind.App. 182, 50 N.E. 488; Doty v. Sandusky Portland Cement Co., 1910, 46 Ind.App. 440, 91 N.E. 569; Essex v. Hopkins, 1912, 50 Ind.App. 316, 98 N.E. 307; Burk v. Brown, 1915, 58 Ind.App. 410, 108 N.E. 252; Murray v. Murray, 1916, 62 Ind.App. 132, 112 N.E. 835; Black v. Smith, 1927, 86 Ind.App. 621, 158 N.E. 916.
The above decisions for the most part are concerned with reservations or stipulations in a contract for a deed dealing with things or rights that would legally pass to the grantee by deed in the absence of such reservations or stipulations, and hold, in line with the weight of authority elsewhere, that such rights, if not carried forward into the deed, are extinguished thereby, and no action lies on the contract. As examples thereof, we mention reservations of growing crops, of easements over the land conveyed, of possession by the grantor for a limited period after title passes, and stipulations that the grantee shall assume and agree to pay a mortgage or current taxes. To none of these things would the grantor retain any rights unless so expressed by the terms of the deed even though it was so stipulated in a previous executory contract between the parties. The same principle applies in the case of inconsistent reservations, for example, if the preliminary contract reserves a fifty foot easement over the land to be conveyed and the deed provides for only twenty-five feet for such purpose, the deed controls.
If however, the contract for the sale of land creates rights collateral to and independent of the conveyance, the contract to that extent survives a deed that is silent in respect thereto. This is on the theory that the conveyance is not necessarily a performance of such collateral and independent agreements, as for example, a provision in the contract that the seller within a fixed time shall repair the house on the premises to be conveyed. Doty v. Sandusky, etc., Cement Co., supra. The point is made in many decisions on the subject that collateral undertakings, not a part of the main purpose of the...
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