Tomlinson v. Tomlinson
| Decision Date | 26 April 1904 |
| Docket Number | 20,119 |
| Parties | Tomlinson v. Tomlinson |
| Court | Indiana Supreme Court |
From Wells Circuit Court; E. C. Vaughn, Judge.
Suit by Eliza E. Tomlinson against William H. Tomlinson. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
J. Q Cline and W. H. Eichhorn, for appellant.
J. S Dailey, Abram Simmons, F. C. Dailey, C. W. Watkins and H. C Morgan, for appellee.
Appellee sued appellant, who is her son, to annul a deed of conveyance of real estate, and to quiet her title. The complaint is in a single paragraph, and, as nearly as we are able to make out, in substance, avers that the plaintiff, being the owner in fee of certain lands, for several years had been sick and enfeebled in body and mind, and thereby easily susceptible to the influence and persuasions of others; and the defendant, knowing the enfeebled condition of his mother, and the great influence he had over her as her son, corruptly intending to defraud her out of her farm, invited her to come and live and make her home with him, and proposed to and promised her if she would convey to him forty acres of land he would support and maintain her, in sickness and in health, the remainder of her natural life. The plaintiff, being overcome by the persuasions and importunities of the defendant, and believing his promises would be kept, and that he would give her a comfortable home with him and supply all her personal wants, and relying thereon, did, in consideration thereof, execute to the defendant a deed conveying to him a certain described forty acres of land. The only consideration for the deed was defendant's promise to provide for the plaintiff during the remainder of her life. After the conveyance, plaintiff went to live with the defendant on the farm conveyed in pursuance of the agreement, and soon thereafter the defendant, by a course of inhuman and unnatural treatment, drove the plaintiff from his house. Wherefore she asks that the deed be set aside, and her title quieted to said real estate. Appellant demurred to the complaint, but pending the demurrer, and without a decision thereon, filed his answer and went to trial. There was a finding for appellee, and, over appellant's motions for a venire de novo and a new trial, judgment was rendered against him.
1. It is assigned here as independent error that the complaint does not state facts sufficient to constitute a cause of action. The points made against the complaint are (1) that the acts constituting the fraud and undue influence are not sufficiently stated, (2) that no demand for performance, and (3) no reentry for condition broken, are averred.
A first assault upon a complaint in this court will be successful when it appears that the pleading is destitute of averment of some fact which is absolutely necessary to support the judgment. Shoemaker v. Williamson, 156 Ind. 384, 59 N.E. 1051; Taylor v. Johnson, 113 Ind. 164, 15 N.E. 238. In this complaint the allegations of fraud are general, and there is no averment of a demand for performance or of a reentry upon the premises before the action was commenced. Ordinarily, in a case like this, both these absent averments are essential to a good complaint. With respect to the demand for performance, see Schuff v. Ransom, 79 Ind. 458; Cory v. Cory, 86 Ind. 567, 573; Lindsey v. Lindsey, 45 Ind. 552, 567. But such a demand may be dispensed with, when it is made to appear that the defendant has renounced his contract, and given the plaintiff notice of his refusal to perform. It is sufficiently shown by a refusal that a demand would be unavailing, and the law does not require a useless thing. Richter v. Richter, 111 Ind. 456, 461, 12 N.E. 698; Burns v. Fox, 113 Ind. 205, 14 N.E. 541; Harshman v. Mitchell, 117 Ind. 312, 20 N.E. 228; Denlar v. Hile, 123 Ind. 68, 24 N.E. 170; Horner v. Clark, 27 Ind.App. 6, 13, 60 N.E. 732.
The allegations of the complaint relating to imposition and fraud, though unskillfully pleaded, are sufficient within the doctrine laid down in the very similar case of Sherrin v. Flinn, 155 Ind. 422, 58 N.E. 549; and the allegation that the defendant, by a course of inhuman and unnatural treatment, drove the plaintiff from his house, though general and in the nature of a conclusion as against an assault upon the complaint for the first time in this court, we think, is sufficient to charge the...
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