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conduct being used with the knowledge of
each of said companies as inducements for
the sale of such lots to the appellee and oth-
We need not express any opinion as
to the correctness of this contention because
appellee's position, as will be hereafter dis-
closed, is not strengthened thereby.

the records of said improvement company. Pursuant to said contract, the improvement company on August 13, 1892, by a deed signed by its president and secretary, conveyed and warranted to appellant railroad company 96.24 acres of land, the consideration expressed in said deed being $8,708.50, which deed was duly recorded on December 10, 1892. Theodore Gary was the manager of said improvement company from some time in 1892 to some time in 1896, and as such, after various verbal conversations with appellee, entered into a written contract with him, of which the following is a copy: "This contract made and entered into this 18th day of January, 1893, by and between the Indiana Improvement Company, the seller, a corporation organized under and by virtue of the laws of the state of Indiana, in that behalf enacted, and George Grate, of the county of De Kalb, state of Indiana, the buyer: Witnesseth, that the seller has sold to the buyer, and the buyer has purchased from the seller, the following described real estate situate in the town of Ashley, county of De Kalb, state of Indiana, to wit: Lots seven (7) and eight (8), in block number thirty-eight (38) at and for the price and sum of three hundred dollars ($300.00), to be paid as follows: One hundred dollars cash, the receipt of which is hereby acknowledged by the seller, and which is a part of the consideration of the sale, and the balance whereof is payable in the following manner, to wit: One hundred dollars on or before one year after date, and one hundred dollars on or before two years after date, as evidenced by two promissory notes of even date herewith, without any relief from valuation or appraisement laws, with interest at the rate of six per cent. per annum, the interest payable annually with attorney's fees. The seller agrees to furnish a complete ab

[3] It is not alleged that such contract or that any of the contracts or agreements relied on were in writing; hence they will be presumed to be verbal. Langford v. Freeman, 60 Ind. 46, 50; Krohn v. Bantz, 68 Ind. 277, 279; Carlisle v. Brennan, 67 Ind. 12, 18; Wolke v. Fleming, 103 Ind. 105, 106, 2 N. E. 325, 53 Am. Rep. 495. The jury by their answers to interrogatories expressly found that the promoters or syndicate of the "Indiana Improvement Company" a few days before the incorporation of such company entered into a written agreement with the appellant Wabash Railroad Company, of which the following is a copy: "St. Louis Mo. March 17, 1892. Mr. Chas. M. Hays, General Manager-Dear Sir: On behalf of the syndicate formed on the 9th day of Feby. 1892, for the purpose of buying land along the Chicago-Detroit extension of the Wabash Railroad, composed of James F. How, Chas. M. Hays, Gary, Wells H. Blodgett, O. D. Ashley and others. One of the principal objects of the above syndicate is to lay out and plat a town site at the division point to be established by the Wabash Railroad Company. The syndicate having secured options on a tract of land lying along said railroad line commencing at the principal street or road, running north and south in the present town of Hudson, thence running east of said street one and a fourth miles. In consideration of the advantage and profits to be derived by the syndicate in location of the Company's depot, terminals and shops on the grounds above mentioned, I make you the following proposition, subject to the approv-stract of title to said buyer; the seller also al of the executive committee: First: We will sell to the Railroad Company whatever ground they may need not to exceed one hundred acres, at the same price we pay, at any time before the town site is platted. * * * Provided, however, that the depot shall be located at least 2,500 feet east of the above mentioned Hudson road (which is on Township line) and that the shops shall be located east of the Depot. Respectfully submitted, Theo. Gary, Manager for the Syndicate. Accepted, The Wabash R. R. Co., by Chas. M. Hays, Gen'l Manager. March 17, '92."

The jury also found by their answers to interrogatories the following facts: Appellant Indiana Improvement Company was incorporated on the 2d day of April, 1892. On May 2, 1892, after its incorporation, the board of directors of such improvement company in a meeting of such directors approved said contract above set out and made a record of their approval. This was the only

agrees to pay all state, county and special taxes on said property, excepting taxes of every nature assessed after April 1st, 1893, and thereafter, which it is expressly understood and agreed that the buyer, his heirs or assigns shall pay all taxes and assessments of every nature assessed against said real estate after April 1st, 1893; that if not paid said deed shall be subject thereto. The seller agrees to deliver to buyer or order a general warranty deed, properly executed, and free and clear of all taxes and incumbrances down to April 1st, 1893, upon the payment by the buyer his heirs or assigns of the two notes herein referred to: If the buyer fail to pay all of the notes herein described, or the interest upon the same when it becomes due, he shall forfeit to the seller all sums of money paid as fixed and liquidated damages, and not as a penalty; and upon such default the said buyer, his heirs or assigns, shall have no further right, title or interest in any way whatsoever in and to

of appellants, to the effect that the railroad company would permanently maintain its division headquarters, buildings, etc., at the town of Ashley, and hence furnish no support to the vital issue tendered by the complaint. It is insisted, however, by appellee, in effect, that there is no finding by the jury that there was no verbal agreement of the character alleged in his complaint, and that we must therefore assume in favor of the general verdict that such oral agreement was proven.

contract, the improvement company on the | contain no agreement on the part of either 6th day of July, 1896, executed to the appellee its warranty deed to the lots in question; the consideration expressed in said deed being $300. There was never any other written contract between appellee and said improvement company relating to said lots, except said deed and the contract pursuant to which said deed was made, and there was no written contract of any kind between appellee and the railroad company. There was no written contract of any kind between appellee and the railroad company relating to the establishment by said company of its [5] It is a general rule that, where a writdivision headquarters, terminal, etc., or erect- ten contract appears to be complete, it is ing its offices, shops, roundhouse, or build-presumed to be the repository of the final ings at said town of Ashley, and no written contract of any kind with reference to said company either permanently or temporarily maintaining such division headquarters, terminals, and buildings at said point. The railroad company about the month of July, 1907, removed from said town of Ashley. The division terminal structures, etc., mentioned in the complaint were so installed by the railroad company at Ashley in 1892 or 1893 and were by such company maintained there until their removal to Montpelier, Ohio,

about July, 1907.

It is earnestly contended by appellants that they were entitled to judgment on said answers to interrogatories. In support of this contention they urge in effect: (1) That such answers affirmatively find that the contracts relied on by appellee as being verbal and on which he bases his right to recover were in writing, and that having predicated his right of action upon verbal contracts he cannot recover on written contract. (2) That the written contracts found by the jury to have been entered into contain no agreement on the part of either of the appellants that the railroad company should permanently maintain its division terminal buildings, etc., at Ashley as alleged in appellee's complaint, and hence could not in any event support a judgment in appellee's favor. (3) That even if it be conceded that appellants had verbally agreed with appellee as alleged in his complaint, and that such agreements were valid and enforceable, that the findings of the jury show a substantial compliance therewith according to the reasonable intendment and meaning thereof.

intention and agreement of the parties in regard to the subject-matter of such agreement, and that such agreement cannot be changed, modified, added to, or subtracted from, by proof of any prior or contemporaneous parol agreement. Carr v. Hays, 110 Ind. 408, 414, 11 N. E. 25; Diven v. Johnson, 117 Ind. 512, 515, 20 N. E. 428, 3 L. R. A. 308; Singer Mnfg. Co. v. Sults, 17 Ind. App. 639, 641, 47 N. E. 341; Stevens v. Flannagan, 131 Ind. 122, 128, 30 N. E. 898; Western,

etc., Co. v. Citizens', etc., Co., 128 Ind. 525, 535, 537, 26 N. E. 188, 28 N. E. 88, 10 L. R. A. 770, 25 Am. St. Rep. 462; Conant v. Nat. S. Bank, 121 Ind. 323, 22 N. E. 250; Pickett v. Green, 120 Ind. 584, 588, 22 N. E. 737; Stewart v. Babbs, 120 Ind. 568;1 Gemmer v. Hunter, 35 Ind. App. 501, 504, 506.2 An exception to the rule just announced prevails with reference to the consideration recited in a deed or writing of any kind; the general rule in such cases being that "the consideration expressed in an instrument of writing may be varied or contradicted to almost any conceivable extent." Pickett v. Green, supra, and cases there cited.

However, this rule has its exceptions. In the case just cited the Supreme Court in commenting on this rule and the reason for its existence said (120 Ind. 588, 22 N. E. 739): "The reason generally given for the rule is that the language with reference to the consideration is not contractual; it is merely by way of recital of a fact, viz., the amount of the consideration, and not an agreement to pay it, and hence such recitals may be contradicted. There is also a rule, [4] There can be no doubt but that appel- so well known that it needs no citation of lee is bound by the averments of his com- authority, to the effect that parol testimony plaint, and, having alleged an oral contract, cannot be received to vary, contradict, or he will not be permitted to recover upon add to, the terms of a written contract; and proof showing that the contract relied on out of this grows the exception to the rule was in fact in writing. Lake Shore, etc., R. first above stated, that, where the contract Co. v. Bennett, 89 Ind. 457, 461; Stewart is complete upon its face, a stipulation as v. Cleveland, etc., Ry. Co., 21 Ind. App. 218, to the consideration becomes contractual, and 226, 52 N. E. 89; Hall v. Penn Co., 90 Ind. where there is either a direct and positive 459, 464; Louisville, etc., Ry. Co. v. God-promise to pay the consideration named, or man, 104 Ind. 490, 493-5, 4 N. E. 163; In- an assumption of an incumbrance on the dianapolis. etc., Ry. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. It is also true that the written contracts offered in evidence

part of a grantee in a deed which becomes binding upon its acceptance, then the ordinary rules with reference to contracts apply,

and the consideration expressed can no more be varied by parol than any other portion of the written contract." See authorities cited. Appellants contend that the contract between appellee and the improvement company pursuant to which the appellee's deed was made shows the consideration to be contractual in character, and hence under the rule above announced cannot be contradicted or added to by evidence of an oral agreement showing an additional or different consideration.

apparent that the conclusion we have reached will necessitate a complete change and reformation of the pleadings, and such questions will not likely arise again.

The judgment is reversed, with instructions to the court below to grant a new trial, and to permit appellee to amend his complaint if he so desires, and for such further proceedings as may not be inconsistent with this opinion.

(No. 8,040.) 1

June 17, 1913.)

(55 Ind. App. 155)


A vendee under a contract to purchase realty becomes the equitable owner, the vendor holding the legal title only as security for the purchase price, so that vendee assumes all the risks and acquires all the benefits of ownership.

[6] Assuming, without deciding, that appellants are in error in this contention, and KIMBERLIN et al. v. TEMPLETON et al. that under the averments of his complaint appellee might have proven a verbal agree- (Appellate Court of Indiana, Division No. 1. ment between himself and the appellants by which they agreed as part of the consideration for his buying the lot in question that the division terminal, buildings, etc., of the railroad company should be permanently located at the town of Ashley, the possibility of such proof, under the issues, would prevent adjudgment on the answers to interrogatories, but, when we come to consider the motion for a new trial and look to the evidence, we find that no such proof was made. When we look to the evidence, we find that the facts found by the jury in their answers to interrogatories are undisputed, and we also find that the written contracts above set out were the only contracts either written or verbal shown to have been entered into between appellants themselves or between either of them and appellee.

There was some evidence tending to show that some of the officers of the two companies, and especially of the improvement company, had by certain letters, advertisements, statements, and public utterances represented in effect that the location of said terminal stations and buildings, etc., were intended to be permanent, but none of these statements could be said to be contractual in character. They were merely the statements and representations of such officers of what they claimed to be, the then present intention and understanding of such companies, which, if untrue, could at most furnish grounds upon which fraud might be predicated, but they were in no sense of the nature of an agreement or contract intended to obligate or bind such railroad company to so permanently locate such terminal stations, buildings, etc., at said point. As to the validity and effect of a contract of the kind herein sued on, whether verbal or written, when made for the purposes and under the circumstances averred in the complaint, we express no opinion. It is clear that the decision is not supported by sufficient evidence, and hence the motion for new trial should have been sustained.

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Many other reasons for a reversal of the case are presented and argued by appellant with persuasive force and reason, but it is

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. § 54.*1 2. VENDOR AND PURCHASER (§ 46*)



A court of equity will construe a contract for the purchase of land so as not to give either party an unfair advantage.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 46.*]


A lien for a sewer assessment is not covered by the covenants of a warranty deed. [Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 139-155; Dec. Dig. § 100.*] 4. COVENANTS (§ 100*)-COVENANTS OF War


A lien created by operation of law, and not by the vendor's act after the execution of the contract of sale and before the execution of the deed, is not covered by covenants of warranty; but, if the lien has attached when the vendee acquires the property, and he conveys by warranty deed with the lien unsatisfied, his covenants of warranty embrace the lien.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 139-155; Dec. Dig. § 100.*]

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Leroy Templeton and others against Albert G. Kimberlin and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

John O. Spahr and James A. Ross, both of Indianapolis, for appellants. Barrett & Barrett, Denny, Bowen & Denny, Ayres & Ayres, and Jones, Hammond & Jones, all of Indianapolis, for appellees.

SHEA, J. This action was brought by appellee Leroy Templeton against appellants and his coappellees, Horatio S. and Annie M. Garner, Mary C. Kimberlin, and Mamie E. Wilson, to recover damages for an alleged breach of certain covenants in a chain of warranty deeds executed by Horatio S. Gar

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

land, to which Garner consented. Brannon made the payment and procured Garner's receipt therefor, which included an agreement to procure another decree quieting title, and reads as follows:

ner and Annie M. Garner, his wife, James | sidered a credit on the purchase price of the A. Wilson and Mamie E. Wilson, his wife, Albert G. Kimberlin and Mary C. Kimberlin, his wife, in the order named. The alleged breach consisted in the existence of and subsequent discharge by appellee Templeton of a certain municipal assessment, which is alleged to have become a lien on the land conveyed prior to the first conveyance by Garner and his wife. This cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon.

The substance of the special findings is as follows: On and prior to May 3, 1906, Horatio S. Garner was the owner in fee simple of certain described real estate in Marion county, and on that day entered into a written contract with George Brannon as follows: "Indianapolis, Indiana, May 3, 1906.

"Cline & Wilkins, Agents.

"I will give the sum of eighteen thousand ($18,000.00) dollars payable as follows: Seven thousand ($7,000.00) dollars in cash, balance in two equal payments payable on or before one and two years after date, with five per cent. (5%) interest; payable semiannually, for the real estate described as follows: [Here follows description of real estate], being all the land I own in said section and township, same to be free and clear of all incumbrances, excepting taxes for the year 1906 payable in 1907, warranty deed and abstract showing good title to be furnished me.

"[Signed] G. H. Brannon.

"I accept the above proposition with the above alterations this 3d day of May, 1906. "[Signed] H. S. Garner.

"I accept H. S. Garner's alterations in the above proposition this 3d day of May, 1906, at 4:30 o'clock p. m.

"[Signed] G. H. Brannon."

On May 8, 1906, Garner furnished an abstract of title to the real estate, which he claimed showed a good title in him, to said Brannon. The latter's attorneys claimed some question might be raised by future purchasers, and a decree quieting the title should be secured. Garner, while claiming this was unnecessary, did institute suit, and on April 4, 1907, secured a decree quieting title to the land. Thereafter he demanded that Brannon accept a deed for the land and pay purchase price. Brannon delayed doing so, and made another claim of an apparent defect, demanding that there be a second suit to quiet title and decree obtained. Garner then informed Brannon he had an offer for the land in a much larger sum than that stipulated in the contract, and offered to rescind the contract. This Brannon refused to do, stating he would hold Garner on his contract. In the meantime Cline & Wilkins, real estate brokers, sued Garner and obtained a judgment for $360 for commission in making the sale to Brannon. Brannon then proposed to pay this judgment, same to be con

"Indianapolis, Ind., February 1, 1907. "Received of George H. Brannon the sum of three hundred and sixty ($360.00) dollars being part payment on fifty-five (55) acres of ground more or less * being all the

land I own in said section, as per contract dated May 3, 1906, between George H. Brannon and H. S. Garner, and the said H. S. Garner hereby agrees to quiet title to the above-described lands making title satisfactory to our attorney Elmer E. Stevenson, same to be deeded when quieted, free and clear of all incumbrances or liens, which amount is to be deducted from the cash payment of the purchase price of the above-described real estate. Said sale is to be closed up within ten days after title is perfected by decree of court, and if said George H. Brannon fails to comply with said contract and close said sale within said ten days as above specified, he is to hereby forfeit to said H. S. Garner above said sum of three hundred and sixty dollars.

[Signed] H. S. Garner." Garner instituted a second suit to quiet title and secured a decree to that effect on June 24, 1907. On July 13, 1907, appellant Wilson informed Garner that he (Wilson) was the owner of the contract dated May 3, 1906, and demanded that the land be conveyed to him. This Garner declined to do because Brannon had not assigned his contract in writing. Wilson then had Brannon indorse upon the contract: "Sold to James A. Wilson and ordered Garner deed property to him. [Signed] G. H. Brannon." On June 6, 1906, the board of public works of the city of Indianapolis, Ind., adopted a resolution for the construction of a sewer in said city, and on July 13, 1906, the contract for the improvement was let to the Julius Keller Construction Company. The sewer was constructed and accepted by the board, and the real estate involved in this action was assessed with benefits amounting to $2,774.95, which assessment was confirmed on February 10, 1908, and became a lien upon the real estate on July 13, 1906. On July 13, 1907, appellees Garner and wife executed to appellant Wilson their warranty deed for the tract of land, which was duly recorded July 15, 1907. That on December 23, 1907, appellant Wilson and his wife Mamie E. Wilson (appellee) executed to appellant Kimberlin a warranty deed for the real estate, which was duly recorded December 26, 1907, and Wilson received the consideration therefor. On January 22, 1908, appellant Kimberlin and Mary C. Kimberlin, his wife (appellee), executed and delivered to appellee Templeton their warranty deed for the land, which was recorded the same day, and Templeton paid

the consideration

appellee Templeton.

It is earnestly insisted on behalf of appellants that because of the fact that at the time the deed was actually executed to appellant Wilson, although subsequent to the execution of the contract, a lien had attached to the real estate for certain sewer assessments made by the city of Indianapolis in a general plan of improvement in that section of the city, there was a breach of the covenants of warranty made by Garner to Wilson, hence the primary liability of Garner as the remote grantor, under a rule which they insist is well established and amply sustained by authority in this state. There is an abundance of authority with respect to the liability of grantors in a chain of title, and that question need not be discussed here in order to dispose of the question involved in this appeal. If the lien which attached because of the public improvement mentioned was such a lien as was covered by the covenants of warranty in the deed made by Garner to Wilson under the facts stated, then the liability of Garner is established.

therefor to Kimberlin. therefor to Kimberlin. I into between appellee Garner and Brannon, Templeton became and is now the owner of and its subsequent effect upon appellants and the real estate. The municipal assessment became a valid and enforceable lien against the real estate on July 13, 1906. That same was not paid, and the assessment was assigned to the German Investment & Securities Company. On May 27, 1908, said company instituted proceedings to foreclose the lien of the assessment; Garner, Wilson, Kimberlin, Templeton and their wives being made defendants in the action. The German Investment & Securities Company obtained a judgment and decree foreclosing the lien in the sum of $3,148.94. Templeton, in order to save the real estate from sale, on July 15, 1909, paid to the sheriff of Marion county the sum of $3,261.14, in full satisfaction of the lien and judgment, no part of which has been repaid to him. The court found there is due and owing Templeton from appellants, on account of said assessment, interest, and costs and judgment rendered thereon and attorney's fees, a total of $3,411.14 with 6 per cent. interest from July 15, 1909, to the date of entering of this judgment, and he is entitled to recover costs of these proceedings from appellants. At the time of the execution of the deed by Garner to Wilson, said Garner and wife and Brannon and Wilson had no actual knowledge of the existence of the sewer assessment lien, but had such constructive notice as they are chargeable with by law.

Upon these facts the court stated its conclusions of law to be: "(1) That the lien for the sewer assessment which was made after the contract of sale of the real estate in controversy is not an incumbrance within the meaning of the warranty of appellees Horatio S. and Annie M. Garner; (2) that appellee Templeton is not entitled to recover as against Garner and Garner, and that said Garner and Garner are entitled to recover their costs; (3) that appellee Templeton is entitled to recover judgment against appellants in the sum of $3,411.14, and interest thereon from July 15, 1909, together with costs of this proceeding; (4) that appellants are not entitled to recover or have any relief on their cross-complaint as against Horatio S. Garner and wife."

[1, 2] We think it may be conceded, as a general rule, that where there is a contract for the sale of real estate, the vendee becomes the equitable owner thereof; the vendor simply holding the title as security for the purchase money. The vendee, being the equitable owner, secures all the benefits and assumes all the risks of ownership. This doctrine is amply sustained in Pomeroy's Eq. Jur. §§ 368, 1406. This being an appeal to the equity side of the court, it is our duty to so construe the contract as not to give either party an unfair advantage.

In the case of Hunter v. Bales, 24 Ind. 299, 302, it is said: "In equity a contract for the sale of land is not merely executory, but the vendee becomes the owner, and the vendor is seized in trust for him, and has a mere lien on the land for the purchase money, upon the maxim that 'equity looks upon that as done which is agreed to be done.' The contract, however, which in equity will make him the owner must be a valid contract; must be such that he has a right to pray a specific performance of it. Equity

Judgment was rendered in accordance with looks upon that as done which is thus agreed the findings and conclusions of law.

It is assigned that the court erred in overruling appellants' demurrers to the special answer filed by Garner and Garner to appellants' cross-complaint, and in each conclusion of law upon the facts found.

Appellants concede that the errors assigned for a reversal present precisely the same question, and may all be determined from a consideration of the conclusions of law upon the facts found, to each of which exception was duly taken.

The important question in this case is to

to be done, and it relates back to the contract."

In the case of Sutherland v. Goodnow, 108 Ill. 528, 48 Am. Rep. 560, the court quotes with approval from Bouvier's Dictionary as follows: "(See Bouv. Law Dic. 495, title 'Sale,' 15.) At law a deed is essential to vest title to real estate, but in equity the title will be treated and protected as being where the parties have contracted it shall be, for that purpose holding the vendor as trustee of the legal title for the benefit of the vendee, while the latter is looked upon

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