Wilson v. Carpenter.

The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to discharge the appellant from imprisonment.

WILSON V. CARPENTER.

CONTRACT.-Specific Performance.-Mortgage.- Defeasance, Effect of Surrender of.-Counter-Claim.—Redemption.—Instruction.-A complaint to enforce specific performance alleged, that the plaintiff, on a certain date, was the owner of certain lands, and, being desirous of obtaining loans of money from time to time, agreed with the defendant, that, in consideration of his undertaking to endorse for the plaintiff as he might direct, not exceeding a certain amount at any one time, he would convey to said defendant the lands mentioned, to indemnify him on account of said endorsements; that, in pursuance of such agreement, said lands were so conveyed to the defendant by deed; that, at the same time, the defendant executed and delivered to plaintiff a defeasance, binding himself to reconvey said lands, if saved harmless from said endorsements; that, subsequently, the plaintiff and defendant had an accounting of all matters of indebtedness between them, and nothing was found to be due to the defendant from the plaintiff; and that the plaintiff then notified the defendant that he was released from all former endorsements, and would not be required to make any more, and demanded a reconveyance of said lands, which the defendant refused. A second paragraph charged a refusal of the defendant to endorse for the plaintiff as stipulated. To this complaint a general denial was filed, and also a special paragraph of answer, averring, that, prior to the conveyance of said lands to the defendant, the plaintiff had executed to him a note, together with a mortgage on said lands to secure its payment; that, after the execution of said deed and defeasance, the plaintiff became indebted to the defendant in other sums of money; that, on said settlement between the parties, it was agreed that the defendant should release the plaintiff from said mortgage and all other claims, and that the plaintiff should surrender said defeasance for cancellation, and that defendant should hold said lands in fee-simple and discharged of all conditions; that the plaintiff so surrendered and delivered up said defeasance as cancelled; and that the defendant thereby released him from all demands, concluding with a prayer that the defendant should be decreed the owner of said lands, free from the equity of redemption.

Wilson v. Carpenter.

Held, that the surrender of the defeasance, under the circumstances alleged, vested in the defendant an absolute title to the lands in suit. Held, also, that the special paragraph of answer can not perform the double office of answer and counter-claim, and, having been treated by the parties as a counter-claim, it should be so regarded, and is sufficient on de

murrer.

Held, also, that an instruction to the jury in such case, that the plaintiff was required to establish more on the trial, as regards the matters embraced in such settlement, than the conditions of the defeasance stipulated, was

erroneous.

Held, also, there being evidence on the trial tending to show, that, at the time of such settlement, the defendant promised orally to reconvey to the plaintiff, and that he had made some admissions as to the terms of the settlement, and as to his promise or liability to reconvey those lands, that an instruction, which told the jury that "this testimony can be considered by you in determining the question as to whether there was such an accounting had between the parties or not, but it can not be considered as fixing any original liability on the defendant," and that, if the plaintiff conveyed to the defendant absolutely in the first instance, "his after oral promise to reconvey would not be binding, but the evidence may be considered in so far as it tends to throw light upon the question as to whether there was a full and final accounting between the parties," in connection with the defeasance, was erroneous as probably misleading the jury as to the weight to which such evidence was entitled. From the Shelby Circuit Court.

T. B. Adams, L. T. Michener, K. M. Hord and A. Blair, for appellant.

B. F. Love, S. Major and A. Major, for appellee.

NIBLACK, C. J.-This was a proceeding by the appellant, against the appellee, to enforce the specific performance of a contract concerning real estate.

The complaint was in two paragraphs.

The first paragraph alleged, that, on the 6th day of January, 1874, the appellant was the owner of several tracts of land, situate in Shelby county, Indiana, amounting in the aggregate to two hundred and fourteen acres, and being desirous of obtaining loans of money from time to time to carry on his business, agreed with the appellee, that, in consideration of his, the appellee's, undertaking and prom

Wilson v. Carpenter.

ising to endorse for him, from time to time, as he, the appellant, might require and direct, not to exceed in the aggregate at any one time the sum of three thousand dollars, he would convey to the appellee said several tracts of land to indemnify and save him harmless on account of said contemplated endorsements; that, in pursuance of such agreement, he, the appellant, did on that day convey said tracts of land to the appellee by a good and sufficient deed of conveyance; that, at the same time, the appellee executed and delivered to the appellant his agreement in writing, known as a defeasance, binding himself to reconvey said lands to the appellant on being indemnified and saved harmless on account of any liability as endorser under said agreement between the parties; that, on the 1st day of March, 1875, the appellant and appellee had a full and final accounting of all matters of indebtedness between them, including endorsements by the appellee for the appellant, and that, upon such accounting, nothing was found to be due from the appellant to the appellee; that the appellant then notified the appellee that he was released from all former endorsements, and that he would thereafter not be required to make any further endorsements for him, the appellant; that the appellant thereupon demanded of the appellee a reconveyance of said lands, in accordance with the terms of their said agreement; that, on the 15th day of March, 1875, the appellant tendered to the appellee a deed in proper form, already prepared for his signature, reconveying said lands to the appellant, but that the appellee refused to execute said deed, or to reconvey said lands in any other manner whatsoever.

The second paragraph was similar to the first, except that it charged a failure and refusal on the part of the appellee to endorse for the appellant, as stipulated between the parties, and a demand for a reconveyance on that ac

count.

VOL. LXII.-32

Wilson v. Carpenter.

The prayer of the complaint was, that the deed from the appellant to the appellee should be set aside, and a reconveyance of the lauds decreed.

The appellee answered in two paragraphs.

The first paragraph set out the execution of the deed to the appellee, and of the defeasance to the appellant, very much as stated in the complaint, and averred, that on the 13th day of September, 1865, the appellant executed to the appellee his note for four thousand dollars, due ten years, after date, together with a mortgage on the lands described in the complaint, to secure the payment of said note; that, after the execution of said deed and defeasance, the appellant became indebted to the appellee in divers other sums of money, giving a detailed statement of them, amounting to the aggregate sum of ten thousand four hundred and eight dollars; that, on the 1st day of March, 1875, on a full settlement of all mutual dealings and demands, it was agreed that the appellee should release the appellant from said last named mortgage debt and all other claims and demands whatsoever, and that the appellant should surrender to the appellee the above named defeasance for cancellation and as null and void, and that the appellee should thereafter hold the lands therein referred to absolutely, in fee-simple, and discharged of all the conditions and qualifications imposed by and contained in said defeasance; that, in pursuance of such agreement the appellant delivered up to and surrendered the said defeasance as cancelled and extinguished, and thereupon the appellee released to the appellant all claims and demands of every kind and executed to him a receipt in full therefor; that thereby the said defeasance was fully executed and discharged, and the appellee became the owner, in fee-simple and absolutely, of the lands described in the complaint, concluding with a prayer that the appellee should be adjudged and decreed the owner of said lands, free from all right, title, interest and equity of redemption of the appellant.

Wilson v. Carpenter.

The second paragraph was in general denial of the complaint.

A demurrer to the first paragraph of the answer was overruled, and a reply in denial was filed.

A trial resulted in a general verdict for the appellee, accompanied by some answers to interrogatories which were not inconsistent with it, and a judgment followed, decreeing, amongst other things, that the appellee should hold, possess and enjoy the lands in controversy, free and discharged of all right, title and equity of redemption of the appellant.

A good many questions were reserved on the evidence and on the instructions of the court, which were brought to the attention of the court in proper form, by a motion for a new trial.

The first question for us to consider here, in its natural order, is the sufficiency of the first paragraph of the appellee's answer.

That paragraph is somewhat informal in its construction, as it purports on its face to be both an answer and a counter-claim-a double office, which, this court has decided, a single pleading can not perform. Campbell v. Routt, 42 Ind. 410.

As an answer it sets up affirmative matter inconsistent with the allegations of the complaint, and avers the entering into a new agreement, upon a sufficient consideration, which constituted a good defence to the appellant's claim for a specific performance of the original contract between the parties. 1 Story Equity, sec. 770; 1 Greenl. Evidence, secs. 302, 304; Browne Statute of Frauds, secs. 409, 429, 430, 433 and 434; Arnoux v. Homans, 25 How. Pr. 427; Billingsley v. Stratton, 11 Ind. 396; Baldwin v. Salter, 8 Paige, 473.

Considered, therefore, as an answer merely, it was sufficient on demurrer.