Dingman v. Kelly

7 Ind. 717

• Court: Indiana Supreme Court
• Decided: June 20, 1856
• Status: Published

Opinion

Gookins, J.

This was an action for breach of covenant brought by Kelly against Dingman, upon a written guaranty by Dingman under seal, that one Jewett should perform the covenants contained in a lease between Kelly, as landlord, and Jewett, as tenant. There was a trial by the Court, finding for the plaintiff, new trial refused and judgment.

The first question made by the appellant is, that the lease between Kelly and Jewett was void for uncertainty, because it did not describe the farm let by Kelly to Jewett. The lease is drawn in proper form, and states that in consideration of the yearly rent and covenants, &c., said Kelly 'had leased, demised and to farm let to Jewett, all the messuage and tract of land situate in the county of Wabash and state of Indiana, viz.: * * * together with all the buildings, improvements and appurtenances, &c. Then follow various covenants by both parties, as to the manner of enjoyment, payment of rent, &c. It is signed and sealed by the parties, and the defendant’s guaranty is appended, but there is nothing in the latter to supply the defect apparent in the lease.'

A. A. Cole and H. P. Biddle, for the appellant. D. M. Cox, for the appellee.

We are of the opinion that the lease was wholly void for uncertainty. If such a defect can be supplied by parol proof, the statute of frauds is of no avail. The proof would more than alter or vary the terms of a deed: it would make one, which, independent of such proof, could have no operation whatever. For the erroneous admission of the lease in evidence against the defendant’s objection, a new trial should have been granted.

This point is decisive of the case, and shows that the action can not be maintained. It is therefore unnecessary to examine the other errors assigned.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.