Wiley v. Howard

• Decision Date: 05 December 1860
• Parties: Wiley v. Howard
• Court: Indiana Supreme Court

15 Ind. 169

Wiley v. Howard

Supreme Court of Indiana

December 5, 1860

APPEAL from the Ripley Circuit Court.

The judgment is reversed, with costs. Cause remanded, with leave to the parties to amend their pleadings.

S. C Stevens, for appellant.

Jer. Sullivan, for appellee.

OPINION

Worden, J.

Complaint by Wiley, against Howard, upon a promissory note for one thousand dollars, dated May 10, 1853, and payable May 10, 1857, made by Howard to one William R. Wiley, and by the latter indorsed to the plaintiff.

The defendant filed an answer of eight paragraphs. A demurrer was sustained to the 5th, 7th, and 8th, and no question arises concerning them. A reply, in denial, was filed to the 2d and 3d. A demurrer was filed and overruled to the 1st, 4th, and 6th, and the plaintiff excepted. Replications, in avoidance, were then filed to the 1st, 4th, and 6th paragraphs of the answer; to which demurrers were sustained, and the plaintiff excepted. The plaintiff having filed replies in denial of the last mentioned paragraphs of the answer, withdrew them, and declining to make further reply thereto, judgment was rendered against him.

The errors assigned, are upon the rulings of the Court upon the demurrers to the 4th and 6th paragraphs of the answer, and upon the demurrers to the replies to the 1st, 4th, and 6th paragraphs, and in rendering final judgment for the defendant.

The paragraphs of the answer on which the questions involved arise, are as follows:

1st. By this paragraph, he admits that he made said promissory note, but says that he gave the same in part consideration of the purchase of certain lands mentioned and described in a bond made by William R. Wiley, and his wife, which he makes a part of his said answer, and which reads as follows, to-wit:

"Know all men by these presents that we, William R. Wiley, and Lucinda Wiley, wife of the said William R. Wiley, of the county of Switzerland, and State of Indiana, are held and firmly bound unto John W. Howard, of the county and State aforesaid, in the sum of sixteen thousand dollars, lawful money of the United States, to be paid to the said John W. Howard, his heirs, executors, administrators, or assigns; for the payment whereof, well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals and dated this May 10, A. D. 1853.

"The condition of the above obligation is such, that if the above bound William R. Wiley, and Lucinda Wiley, his wife, or their heirs, on or before May 10, 1860, shall and do, upon the reasonable request of the said John W. Howard, his heirs or assigns, and at their proper costs and charges, make, execute and acknowledge, or cause to be made, executed and acknowledged, a deed, or deeds, of conveyance, such as will be sufficient to convey, assure, and confirm to the said John W. Howard, his heirs and assigns, a good, absolute, and indefeasible estate of inheritance in fee simple, clear of all encumbrances, of and in the following messuages and tenements, to wit: The north-east quarter of section twenty-eight (28), township two (2), range one (1), west, containing one hundred and sixty acres; and also a part of the north-west quarter of section twenty-eight (28), township two (2), range one (1), west, bounded as follows, to-wit: Beginning at center of said section at which a locust is planted as a corner, being the south-east corner of said quarter section, running thence north, nine degrees east, thirty-eight chains and five links to the north-east corner of said quarter, being the north-west corner to Zela Moss, and south east to Abraham Bledss' section on which a beech, six inches in diameter, distance twenty-three links, bears south, six degrees east, and a beech twenty inches, distance twenty links, bears north, thirty-four degrees west, thence west with the north line, twelve chains and eighty-six links to a corner from which a beech, thirty-six inches in diameter, distance twenty-eight links, bears east to a beech twenty inches in diameter, distance thirteen links, bears north seventy degrees west, thirty-nine chains and twenty links to the south boundary of said quarter, from which a beech eighteen inches in diameter, distance nineteen links, north thirty-two degrees west, and a beech twenty inches in diameter, distance twenty-five links, bears south, thence with the south boundary of said quarter, twelve chains and eighty-six links to the place of beginning, containing fifty acres of land, it being the same land deeded by John Carver and Margaret Carver, to William Wiley, and recorded in the Recorder's office of Switzerland county, in book B, pages 230 and 231, February 20, 1852. Also fifty acres off the north side of the south-east quarter of section twenty-eight (28), township two (2), range one (1), west, with the appurtenances thereto belonging; and in the meantime, and until such deed shall be executed, shall and do permit and suffer the said John W. Howard, his heirs and assigns, peaceably and quietly to hold the said messuage and tract of land, then the above obligation is to be void and of none effect, otherwise to be and remain in full force and virtue in law. For which the said John W. Howard has this day agreed to pay the said William R. Wiley the sum of seven thousand eight hundred dollars, that is to say, the said Howard has this day paid me in hand one thousand dollars, and executed seven notes of hand, one note for eight hundred dollars, payable on May 10, 1854; one note for one thousand dollars, payable on May 10, 1855; one note for one thousand dollars, payable on May 10, 1856; one note for one thousand dollars, payable on May 10, 1857; one note for one thousand dollars, payable on May 10, 1858; one note for one thousand dollars, due on May 10, 1859; and one note for one thousand dollars, payable on May 10, 1860, the whole notes to be a lien on said land until paid, the notes bearing interest from date.

"Signed, sealed and delivered in presence of Joseph Malin."

William R. Wiley, Seal.

Lucinda X Wiley, her mark. Seal.

That he did on September 29, 1856, demand of said William R. Wiley, a deed for said land, of the kind and description in said title bond mentioned, and offered that he would, on his complying with such demand, pay the whole of the purchase money, but said Wiley wholly failed and refused to make said deed on such request made of him. That at the time he purchased said land from said William R. Wiley, and at the time he gave said notes, the said Wiley falsely and fraudulently represented to defendant, that he had a good title to said land, that he had a good right to sell the same, and that he could make a good title thereto; when, in truth and in fact, the said Wiley had no good title to a portion of the said lands, to-wit: the north-east quarter of section twenty-eight (28), in township No. 2, range one west, and no good right to sell the same, and could make no good and valid title thereto, nor had he, at the commencement of this suit, any good title thereto, nor has he yet, but the title to said quarter section of land is in one Micajah G. Moss, who refuses to convey the same. And defendant says, that confiding in said false and fraudulent representations of said Wiley, he purchased said lands, and gave the note in the complaint mentioned, in part consideration of said purchase and sale; and defendant says that he has paid to said William R. Wiley the sum of $ 4,400, part of said purchase money, which is more than the residue of said lands in said title bond is worth, and more than the said Howard was, by the contract with said Wiley, to pay therefor; wherefore he says, that the consideration for which said note was given has failed.

4th. By this paragraph it is averred, that defendant executed said note, but that it was given in part consideration of certain lands, sold by said William R. Wiley to this defendant on May 10, 1853; for the conveyance of which the said Wiley and wife, executed to defendant a title bond, dated on said May 10, 1853, as above set out. That at the time of said purchase and sale, said Wiley represented to the defendant that he had purchased a portion of said land, to-wit: the north-east quarter of section 28, in township No. 2, range one west from one Micajah G. Moss, and had a valid title bond from said Moss for the conveyance of the same; and falsely represented that he had fully paid said Moss for said quarter section of land, that he had an equitable right thereto, and that he would procure from said Moss, and make to the defendant, a good title to the same; and said defendant, confiding in said representations of said Wiley, purchased from him said lands, and executed said note, in complaint mentioned, in part consideration of the purchase money. And defendant says it was not true that said Wiley had made a valid purchase of said quarter section of land from said Moss, nor had he paid the purchase money therefor, and that the legal and equitable title to said quarter section of land is in said Moss, who refuses to convey, and will not convey the same to said Wiley; and said Wiley has not complied with his contract made with said Moss. And defendant further says, that said Moss claims the title and possession of said land, and has demanded possession of this defendant, and has commenced an action, in this Court, for the recovery of the possession thereof; that on October 10, 1856, he demanded from said William R. Wiley a deed for said land, but he wholly refused to make the same. And defendant says he has paid the said William R. Wiley the sum of $ 4,400, part...