Walter v. Hartwig

• Decision Date: 02 April 1886
• Docket Number: 12,414
• Citation: 6 N.E. 5,106 Ind. 123
• Parties: Walter v. Hartwig et al
• Court: Indiana Supreme Court

6 N.E. 5

106 Ind. 123

Walter v. Hartwig et al

No. 12,414

Supreme Court of Indiana

April 2, 1886

From the Allen Superior Court.

Judgment affirmed.

T. E Ellison, for appellant.

R. S Robertson and J. B. Harper, for appellees.

OPINION

Elliott, J.

The appellee Hartwig alleges in the first paragraph of his complaint, that he is the owner of the real estate therein described; that the appellant has caused to be recorded an agreement executed to him by Mary Beuret and John B. Beuret wherein they agreed, in consideration of the promise of the appellant to do certain acts, to convey to him the real estate; that the agreement was not acknowledged and was not entitled to be recorded, and that it clouds the appellee's title.

The second paragraph of the complaint alleges the same facts as the first, and, in addition, avers that the appellant did not perform the acts which he undertook to perform. Prayer that the record of the instrument be cancelled, and that the appellant be enjoined from setting up any claim to the real estate.

We think that the complaint is good. The appellant disobeyed the positive command of the law in causing the instrument to be placed on record, and the appellee certainly has a right to have the illegal act annulled. A void act may create such a cloud upon an owner's title as to entitle him to relief, so that, although the recording was void, the appellee has a right to have the record cleared of all embarrassing entries. Bishop v. Moorman, 98 Ind. 1 (49 Am. R. 731), and authorities cited; Petry v. Ambrosher, 100 Ind. 510; Thomas v. Simmons, 103 Ind. 538, p. 545, 2 N.E. 203; Hobbs v. Board, etc., 103 Ind. 575, 3 N.E. 263.

The answer sets forth the instrument set out in the complaint, and alleges that at the time it was executed Mary Beuret was the owner of the real estate; that at all times the defendant "has been ready to fulfil his part of said contract; that he prepared the petition as stipulated in said contract and would long ago have presented the same to the common council had not the said Beurets requested him to defer the same until the latter part of the present September in the present season, when they expected to have the means necessary to pay the costs thereof; that the plaintiff, conspiring with the Beurets and others to cheat and defraud this defendant, and with full knowledge and actual notice of said contract and the defendant's rights thereunder, which notice he had prior to the purchase of said property, prevailed upon the said Beurets to violate their contract with this defendant and convey the property to him." The contract referred to in the pleadings reads thus:

"It is hereby agreed by and between Mary Harriet Beuret and John B. Beuret, her husband, of Fort Wayne, Allen county, and State of Indiana, party of the first part, and Charles W. Walter, also of said county and State, party of the second part,

"Witnesseth: That for and in consideration of the conveyance by said party of the second part, to said party of the first part, lot 46 in Levi M. Jones' subdivision of the south ten (10) acres east of Spy Run avenue, lot one (1) Wells' preemption, in township 30 north, of range 12 east, 2d P. M., and assuming to pay five hundred dollars ($ 500) of a certain mortgage held by Caroline Stafford, on lot 25, Hanna's addition to said city, now owned by said parties of the first part; and the further consideration of the services of said party of the second part in procuring and petitioning the council of said city to close the alley between said lot 25, Hanna's addition, and lot 24 in the same addition, the said parties of the first part agree to convey, by good and sufficient deed, thirty-five feet (35) off of the west side of said lot 25, Hanna's addition to said city. They, the said first parties, further agree to furnish said second party an abstract of title to said lot 25."

The answer is bad. It assumes to be an affirmative plea, confessing and avoiding the plaintiff's cause of action, but it confesses without avoiding. It admits that the instrument was not entitled to be recorded, and thus concedes a prima facie cause of action; this prima facie cause of action it does not avoid, because it fails to aver that the defendant did perform the acts which he undertook to perform. It is true that the answer avers that he was ready to fulfil his part of the contract, but it does not aver that he did perform it. For anything that appears, the contract may yet be unperformed on his part. In such a case as this, where the rights of a third party have intervened, it is necessary for the defendant to show such an equity as will defeat that party's right to have his title cleared of clouds.

The counter-claim sets forth the same contract as that referred to in the complaint and answer, and avers "That immediately after the execution of said contract, he prepared a petition to the common council of said city, praying for the vacation and closing of said alley; that he requested other parties interested to sign the same; that they refused so to do till the month of September, 1884, which fact he reported to said Beurets, and the presenting of said petition to said...