Pearson v. East

36 Ind. 27

• Court: Indiana Supreme Court
• Decided: May 15, 1871
• Status: Published

Opinions

Downey, C. J.

The complaint in this case is against the executors of the will of George A. Thornton, deceased, his widow and heirs at law, the appellants, to compel them to convey to the appellee certain real estate described in the complaint.

It alleges the recovery of certain judgments against the appellee and others, part of which were in favor of the deceased, and part of them in favor of others, the issuing of executions thereon, the sale of the real estate in question, the purchase thereof by the deceased, and the execution of a conveyance thereof to him by the sheriff

It then alleges, that when the- deceased purchased said real estate, there was an understanding and agreement between him and the appellee that the deceased was to hold in trust for the appellee. That after the sale of said land the deceased agreed with East that if the amount due on the executions should be paid to him, he having got control of them all, he would convey the land back to East; that the deceased put East into possession of the land under this contract, with the agreement that he should make improvements and pay the taxes on the land, and that he has continued in possession ever since, and that he has made improvements, with the knowledge of the deceased, and paid the taxes; that East has fully paid off the amount of the executions, and has demanded a deed of the executors, who have power by the will to convey, but that they have refused to make a deed.

Demurrers were filed by all the defendants to the complaint, which were overruled, and this is the first alleged error.

So far as the complaint attempts to set up a trust, it seems to us that it is defective. It will be seen that it does not aver any consideration for the agreement. It is nudum pactum. It does not set forth any facts from which the court could determine the nature of the trust, if there was a consideration alleged. It is not shown to be a case justifying the application of the rule of law laid down in the case of Arnold v. Cord, 16 Ind. 177.

It is decided by this court that “ a person cannot be treated as a trustee who, without fraud, purchases real estate at a sheriff’s sale with his own money, and takes the title in his own name upon a verbal agreement to hold it for the benefit of the execution debtor. Minot v. Mitchell, 30 Ind. 228. This was a much stronger case than the one at bar, so far as this feature of it is concerned.

But looking at the case as one based on a claim for the specific performance of a contract for the purchase of real estate, we think it contains a valid cause of action. It alleges the contract for the sale of the real estate, in consideration of the payment of the amount due on the executions, the putting of the vendee in possession under the contract, the making of valuable and lasting improvements, and the payment of the purchase-money. For this reason the demurrers were correctly overruled.

The defendants answered by general denial, and, in addition to this, all of them, except the executors, filed a second paragraph as a cross complaint, in which they allege that they are the owners of the real estate and entitled to the possession thereof; that the appellee had possession, and for six years had kept them out of possession, to their damage, etc.

Demurrer to the cross complaint overruled; reply filed; trial by the court, and finding and judgment for the appellee. Motion for a new trial overruled, and exception, putting the evidence in the record.

' A question was raised and reserved by exception, during the progress of the trial, as to the propriety of the ruling of the court in allowing parol evidence of the trust attempted to be set up in the complaint. Having held that there was no sufficient allegation of a trust, we must hold that this evidence was improperly admitted. Viewing the complaint as one for specific performance, we are of the opinion that the evidence was not sufficient to justify the finding of the court.

The complaint alleges that the appellee was put into possession under the contract of purchase, but the evidence of the appellee himself shows that he was in possession before and at the time when he alleges the contract to have been made. While it is well settled that the taking of possession under a cohtract of purchase of real estate is ° sufficient to take the case out of the operation of the statute of frauds, it is equally well settled that simply to remain in possession is not sufficient, even though the purchase-money may have been paid and improvements made. Adams Eq. 86, et seq.; Moreland v. Lemasters, 4 Blackf. 383; Johnston v. Glancy, 4 Blackf. 94.

If the purchaser has made improvements for which he has a valid claim, he can be compensated therefor in damages. Anthony v. Leftwich, 3 Rand. 238. And if he has paid purchase-money, he may recover it in an action for money had and received.

I think the judgment ought to be reversed.