Stafford v. Bartholomew

2 Ind. 153

• Court: Indiana Supreme Court
• Decided: July 10, 1850
• Status: Published

Opinion

Perkins, J.-

-This was a bill in chancery by James Stafford against the remaining heirs of his father, Thomas Stafford, seeking to obtain the title to 80 acres of land. The bill alleged that the plaintiff had advanced to his father, in his lifetime, 100 dollars, in consideration of which he, the father, had agreed to devise said 80 acres of land to the plaintiff. It alleged that his father did make a will devising said land according to the agreement, but that the same was lost. The land was worth 400 dollars. The bill prayed for the appointment of a commissioner to convey the land to the plaintiff, on one, or both, of these grounds, viz.: on the ground of the agreement to devise it, and the payment of the 100 dollars ; or on the ground that a will was actually made and lost, which did devise it to the plaintiff; or, as we have said, on both these grounds. The bill was dismissed on demurrer.

This bill could not be sustained on the ground of the contract to devise. That was not an agreement that could be specifically enforced; nor could it be enforced as a contract of sale, at least, in this case, as no possession was ever taken by the plaintiff.

W. Quarles, for the plaintiff. L. Barbour, for the defendants.

On the other ground, that a will had been made and lost, the bill was bad on demurrer, for the want of an affidavit of the loss. Pennington v. The Governor, 1 Blackf. 78. — Findlay et al. v. Hinds and Wife, 2 How. U. S. 241. The bill in the case before us went for relief as well as discovery.

As the plaintiff refused to amend on the sustaining of the demurrer, the bill was rightly dismissed.

Per Curiam.

The judgment is affirmed with costs, &c.