Waymire v. Waymire

• Decision Date: 23 April 1895
• Docket Number: 17,326
• Citation: 40 N.E. 523,141 Ind. 164
• Parties: Waymire et al. v. Waymire
• Court: Indiana Supreme Court

40 N.E. 523

141 Ind. 164

Waymire et al. v. Waymire

No. 17,326

Supreme Court of Indiana

April 23, 1895

From the Madison Circuit Court.

The judgment is reversed and the cause remanded with instructions to sustain the demurrer to each paragraph of the complaint.

E. B Goodykoonts, G. M. Ballard and H. D. Thompson, for appellants.

F. S Ellison, for appellee.

OPINION

McCabe, C. J.

The appellee sued the appellants to enforce specific performance.

The complaint was in three paragraphs, a demurrer to each of which for want of sufficient facts was overruled.

The issues formed thereon were tried by a jury resulting in a verdict for the plaintiff, upon which he had judgment over appellants' motion for a new trial. The first paragraph of the complaint is as follows: "The plaintiff complains of the defendants and says that heretofore, to wit, in 1878, this plaintiff purchased of John S. Waymire the southwest quarter of the northwest quarter of section 25, township 22 north, in range 6 east, in Madison county, Indiana, and went into immediate possession of the same and has made permanent and lasting improvements upon the same and paid the full consideration for said real estate and the full purchase-price therefor and has remained in possession of said real estate under said purchase ever since 1878, and is still in possession of the same under said purchase and under no other or different agreement whatever; that he now is entitled to a deed of conveyance from said John S. Waymire and has been ever since 1878; that he has made frequent demands on said Waymire for said deed of conveyance, and said Waymire has refused, neglected and failed to make said deed and still refuses so to do; that on the 9th day of December, 1892, John S. Waymire, for the purpose of evading the fulfillment of said agreement to convey said real estate to this plaintiff, pretended to convey the same to Emma J. Huston, well knowing that he had no legal right so to do, and the said Emma J. Huston knew at the time the deed was so made that said David Waymire was in possession of said real estate and was claiming it as his own, and took said deed subject to the right of the plaintiff. Wherefore the plaintiff asks that John S. Waymire be compelled to make to this plaintiff a good and sufficient warranty deed, free from any claim or lien of said Emma J. Huston or any one else, or appoint a commissioner to make said deed."

The second paragraph only differs from the first in that instead of alleging he had "paid the full consideration for said real estate, and the full purchase-price therefor," it alleges that he had "paid for the same at the time with certain houses and lots in the town, now city of Elwood, Indiana," and in that instead of alleging that he "went into immediate possession of the same, and has made permanent and lasting improvements, * * and has remained in possession of said real estate under said purchase ever since 1878," it alleges that he "went into possession of said real estate under said purchase, to wit, in 1878, and has remained in possession ever since;" and the third only differs from the first in that it alleges that "John S. Waymire being the father of said David Waymire, and being indebted to him, agreed with David Waymire that if said David Waymire would move onto, improve and put lasting and valuable improvements on" the same land, and that "David Waymire says that he immediately moved upon * * * said land" instead of the consideration as alleged in the first paragraph.

The complaint being founded on a contract, and there being no allegation that it was in writing, the presumption is that it was in parol. Langford v. Freeman, 60 Ind. 46; Goodrich, Admr., v. Johnson, 66 Ind. 258; Carlisle v. Brennan, 67 Ind. 12.

The first and third paragraphs of the complaint are insufficient for one reason if not for more, and that is it is not alleged in either that the possession was taken under or pursuant to the contract of purchase. The contract being by parol, and for the purchase of real estate, it is clearly within the statute of frauds. In order to take it out of the statute it must be alleged that the possession was taken under the contract. It is not enough that possession was taken, it must be taken under the verbal contract, and pursuant to its provisions. Judy v. Gilbert, 77 Ind. 96; Moore v. Higbee, 45 Ind. 487; Swales v. Jackson, 126 Ind. 282, 26 N.E. 62.

The averment on that point in the first paragraph is, "and went into possession of the same;" and in the third paragraph is, "that he immediately moved upon and cleared up, put buildings upon, and other valuable and lasting improvements upon said land." These averments fall very far short of alleging that appellant took possession of the land under or pursuant to the terms of the contract, or that such possession was delivered to him, or that he was placed in possession under or pursuant to the terms of such verbal contract. It is true, further on in the first paragraph it is averred that he "has...