Wagner v. Winter
| Citation | 23 N.E. 754,122 Ind. 57 |
| Decision Date | 06 February 1890 |
| Docket Number | 13,125 |
| Parties | Wagner v. Winter |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Judgment reversed, with costs, with instructions to grant a new trial.
I. L Bloomer and R. Hill, for appellant.
O. S Hadley, L. Ritter, E. F. Ritter and B. W. Ritter, for appellee.
The record presents the following state of facts: On the 20th day of January, 1877, the sheriff of Marion county issued to the appellee his certificate of purchase for certain real estate in the city of Indianapolis; on the 23d day of the same month, she assigned the said certificate to the appellant to secure a loan of $ 1,000, and on the 2d day of April, in the same year, she made a second assignment to the appellant to secure a loan of $ 30, and on the 29th day of May following, she made a third assignment to the appellant to secure a further loan of $ 25. All of said assignments were in writing and were endorsed on the certificate, and as the character of the assignments become somewhat important in the future consideration of the case as presented by the record, we will copy the first one, the others being similar in character:
On the 27th day of October, 1877, the parties entered into a written agreement, which recited the assignment of the said certificate to the appellant, in which it was expressly agreed that, in consideration of the payment to the appellant of the interest due upon the several sums of money, as evidenced by the said endorsements upon the certificate, he agreed that the appellee should retain the use of said sums of money for a period of three years from January 1, 1878, and in case of the payment of the said principal sums, together with accruing interest thereon before that date, the appellant agreed to deed, transfer, or otherwise convey to the appellee all, or any, interest held by him in said real estate by virtue of said certificate of purchase.
It was further provided in said writing that the appellant was to have control of the real estate, to rent the same and collect the rents, and apply the same in payment of the interest due on said loans, and in payment of taxes; and, if there remained a surplus, to pay it to the appellee.
On the 1st day of November, 1878, the appellant procured a deed from the sheriff of Marion county, to himself, for the said real estate, and surrendered the said certificate.
The said assignments, or endorsements, upon the certificate are copied in full in the sheriff's deed, and form a part of it.
On the 15th day of February, 1881, the appellant executed a warranty deed to one Sarah E. Clark, to the said real estate; the said deed reciting a consideration of $ 1,000; on the 26th day of April, in the same year, the appellee executed a quitclaim deed to the said real estate to Mrs. Clark, the said deed reciting a consideration of $ 150.
This is an action by the appellee against the appellant to recover the difference in the value of the real estate, and the amount due on account of the said loans, together with rents and profits received on account of the real estate.
The action was brought, put at issue, and tried, on the appellee's part, upon that theory.
The theory was, that in consequence of the conveyance which the appellant made to Mrs. Clark the appellee lost her equity of redemption, and, therefore, the appellant must respond to her in damages for the value of the real estate, less the amount due him.
The evidence in the case introduced by the appellee all related to the value of the property, except so far as she sought to charge appellant with the rents and profits received to the date at which he conveyed to Mrs. Clark.
In its first instruction to the jury, the court informed them that the claim of the appellee was that she transferred the sheriff's certificate to secure a loan of $ 1,000, and that while the appellant held the certificate, and without authority from the appellee, he surrendered the certificate to the sheriff and took a deed and afterwards conveyed the real estate to another person, and in consequence thereof it had been lost to her, and by reason thereof she claimed damages.
In the second and third instructions the appellee's right to recover was placed upon the ground that the appellant sold and conveyed the real estate to a third person for value, without notice, so as to defeat the appellee's right of redemption; and in the fifth and last instruction the jury are told that the measure of damages, in case the appellee is entitled to recover, is the value of the property, added thereto the rents and profits received by the appellant down to the time of the conveyance, and that after deducting therefrom the indebtedness due to the appellant, the amount of all liens on the property discharged by him, and all reasonable expenses by him incurred in relation to the real estate, the remainder, if any, was the amount which the appellee was entitled to recover.
It is a rule of this court, well established, that the plaintiff to an action before he can recover judgment must proceed upon some definite theory, and the evidence which he introduces must support that theory. First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105; Western Union Tel. Co. v. Young, 93 Ind. 118; Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, 3 N.E. 611. In the last case the rule is declared to be, that the complaint must proceed upon a distinct and definite theory, and upon that theory the case must stand or fall.
There was a jury trial at special term, a verdict returned in favor of the appellee, and over a motion for a new trial the court rendered judgment upon the verdict. Counsel on both sides limit their...
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