Davar v. Cardwell

27 Ind. 478

• Court: Indiana Supreme Court
• Decided: May 15, 1867
• Status: Published

Opinion

Gregory, J.

Cardwell sued Davar to recover a payment due on the sale and conveyance from the former to the latter of real estate. The original contract of sale was not in writing. By its terms the appellant was to pay the appellee $1,800 for the land, $350 of which was paid at the time, and the residue was to he paid in payments falling due the 25th of December, in each of the years 1865,1866 and 1867. The appellant took possession, and has continued in possession of the land ever since. The appellee’s wife, at the time, was not of age; it was therefore agreed that he should make a deed for the land to Donar, and give him a bond for the conveyance of the wife when she came of age, which would be in February, 1866, before the last two payments would become due; and in case the wife refused to convey, the last two payments were to be witheld as a security for such conveyance. Cardwell, before this suit was brought, made and delivered to Dañar a warranty deed for the land so sold. Mrs. Cardwell executed a deed on becoming of age, in February, 1866, but not until after this suit was commenced. The record of the deed from Cardwell to Davor was admitted in evidence over the objection of the latter, and the appellee was permitted to testify, over the objection of the appellant, as to when he made and delivered the deed.

Three points are made by counsel in their brief: 1. That the court below erred in admitting in evidence the record of a deed with a defective acknowledgment. 2. That the com't erred in allowing parol proof of the time when the deed was made and delivered to the appellant. 3. That the suit was prematurely brought.

The certificate of acknowledgment of the deed, which is claimed to be defective, states that “ personally came George W. Cardwell, the executor of the annexed deed, and acknowledged it.” It is claimed that this is not in compliance with the requirements of section 25 of the act concerning real property, and the alienation thereof. 1 G. & H., 264. It is argued that the words “acknowledged it,” do not substantially mean the same thing as the words “ acknowledged the execution of the annexed deed.” An acknowledgment of the deed is an acknowledgment of its execution; it cannot he a deed unless it is executed, and therefore we think that the certificate in question is in substantial compliance with the statute. It was competent to prove by parol when the deed was executed. This was not proving its contents. The acceptance by the appellant of the warranty deed from the appellee made the former liable to pay the money sued for in this action. Perhaps Davar might have declined to accept the deed until the bond was executed, but he elected to receive it, having at the time ample indemnity in the deferred payments for any damage which might accrue to him from the refusal of the wife to convey, on her coming of, age. The appeal bond was filed on the 6th of July, 1866; the appellee has been delayed in the collection of his just demand for eleven months. There will yet bo some delay before the money can be collected. Looking upon this c9.se as one of delay, we have concluded to add ten per cent, damages.

Hester, Browning and Hester, for appellant.

The judgment is affirmed, with ten per cent, damages and costs.