Vendor's Lien: Case vs. Bumstead
APPEAL from the Pike Circuit Court.
Case vs. Bumstead and Others.
ELLIOTT, C. J. — Complaint by Case, the appellant, against the appellees,
to enforce a vendor's lien on real estate.
The facts of the case, as alleged in
the complaint, are substantially these: James Evans, being seized in fee of
certain real estate, situate [sic] in Pike county, on the 3d of November,
1855, bargained and sold the same to N. B. & E. S. Alford, by an agreement
in writing, signed by the parties, as follows:
"Article of agreement made and
entered into the 3d day of November, 1855, between James Evans, of Pike county,
Indiana, of the one part, and Nathan R. Alford and Elijah S. Alford, of the same
place, of the other part, witnesseth: that the said James Evans has this day
sold to the said Elijah S. Alford and Nathaniel Alford, the equal, undivided
half of the following described tract of land, lying and being in said county of
Pike," (describing it,) "containing one hundred and fourteen and one-half acres.
The said Alfords agree to pay to said Evans, as consideration money thereof, one
thousand dollars on or before the 1st day of April, 1856, and, upon making such
payment, to execute to said Evans their two notes of hand, one payable on the
25th day of December, 1856, for one thousand dollars, and one for five hundred
dollars, payable December 25th, 1857; said notes to bear interest from date. Now
the said Evans, on his part, agrees, upon receipt of the first payment as
aforesaid, and upon the execution of the notes aforesaid, to make and execute to
the said Alfords a good and sufficient deed in fee simple for said tract of
land, and also to give to them possession of
the premises, including houses, free from rent
or charge.
"In witness whereof, the parties
have hereunto set their hands and seals the day
and year first above written.
his
[Signed,] JAMES [X] EVANS.
[SEAL.]
mark.
N.R. & E.S. ALFORD.
[SEAL.]"
"Attest: JOHN McINTIRE."
On the 24th
of March, 1856, the Alfords paid to Evans, on
tne contract, $1,000, and executed to him their
two promissory notes, one for the sum of
$1,000, payable on the 25th of December, 1856,
and the other for the sum of $500, payable on
the 25th of December 1857. They describe the
land, and show that they were given in part
consideration thereof. Evans, on the same day,
executed and delivered to the Alfords a deed of
conveyance in fee for the land, as required by
the terms of the written contract.
On the 9th
of April, 1856, Evans procured the execution of
the written agreement to be proved before the
recorder of Pike county, by Mclntire, the
subscribing witness, a certificate of which
proof was duly indorsed on the agreement by the
recorder, and the agreement and certificate
were then recorded in the recorder's office of
said county.
On the 25th of April, 1856, Evans
sold, and transferred by indorsement in
writing, both the promissory notes executed to
him by the Alfords, to Case, the plaintiff.
N.R. & E.S. Alford, afterward laid off and
platted the lands into town lots, named the
town Alford, and had said plat duly
acknowledged, and recorded in the recorder's
office of the county of Pike. The defendant,
Rhoda Bumstead, afterward became the purchaser,
and is now the owner, of a large number of said
lots, particularly described in the complaint.
The complaint also avers that the notes remain
due and unpaid, and that N.R. & E.S. Alford
long since failed in business and removed from
this state, and that they, nor either of them,
have now, nor within the last five years have
had, any property in this state subject to
execution. The complaint prays that the amount
due on said notes may be declared a lien on
said lots, now owned by said Rhoda Bumstead,
and, unless the same be paid, that a sale of
said lots be decreed for the payment thereof,
&c.
Publication was made as to the defendants,
Nathan R. and Elijah S. Alford, and they were
defaulted. Rhoda Bumstead appeared and demurred
to the complaint. The court sustained the
demurrer, and, thereupon, rendered final
judgment for the defendants.
The only question
urged for the reversal of the judgment of the
Circuit Court arises upon the ruling of that
court in sustaining the demurrer to the
complaint.
It is not averred in the complaint
that Rhoda Bumstead, at the time she purchased
the lots and received a title to them, had
actual notice of the existence of the notes to
Evans, and that they were given for a part of
the purchase money of the land by N. B.& E.
S. Alford, but it is averred that she had
constructive notice thereof, by the recording
of the article of agreement between the
parties, in reference to the purchase.
Section
35 of the "Act concerning real estate and the
alienation thereof," 1 G.& H. 266, provides
that "every executory contract for the sale or
purchase of lands, when proved or acknowledged
in the manner prescribed in this act for the
proof or acknowledgment of conveyances, may be
recorded in the county in which the lands to
which such contract shall relate may be
situate; and when so proved or acknowledged,
and the record thereof when recorded, and the
transcript of such record when duly certified,
may be read in evidence in the same manner, and
with the like effect, as in the case of a
conveyance."
This provision of the statute
authorized the contract between Evans and the
Alfords to be recorded, and the recording of an
instrument, authorized by law to be recorded,
operates, in judgment of law, as constructive
notice to all subsequent purchasers or
mortgagees of the contents of such instrument.
Lasselle v. Barnett, 1 Blackf. 151 ; Reed v.
Coale, 4 Ind. 283. This contract having been
duly proved and recorded before Rhoda Bumstead
purchased the lots, she must, therefore, be
presumed to have purchased with notice of its
contents.
Assuming, then, that she had notice
of the existence and contents of the contract,
the question is presented, are the facts stated
in the contract sufficient to charge her with
notice, after the execution of the deed by
Evans to the Alfords, that a part of the
purchase money still remained unpaid? It was
evidently the object of Evans, in procuring the
contract to be proved and recorded, to assert
his equitable lien on the land for the unpaid
purchase money, and to give notice thereof to
all who might become interested. Its covenants,
in other respects, had been fully performed
before it was recorded, by both parties; and,
except as a means of giving such notice, its
recording would have been a useless expense.
The facts shown by the contract are, that the
whole consideration for the land was $2,500;
that of this sum the Alfords were to pay $1,000
on the 1st of April, 1856, at which time Evans
was to execute to them a deed for the land,
and, at the same time, they were to execute to
Evans their promissory notes, one for $1,000,
payable on the 25th of December, 1856, and the
other for $500, payable December 25th, 1857.
By
the record, then, Mrs. Bumstead was notified
that the Alfords were to receive a conveyance
for the land long before they were to pay
$1,500 of the purchase money, and that, at the
same time of the execution of the deed to them,
they were to execute to Evans their two
promissory notes for that $1,500. While the
record of the deed afforded prima facie
evidence that the purchase money was fully paid
at its execution, the record of the original
contract gave notice that, by its terms, the
deed was to be made and delivered, leaving
$1,500 of the purchase money to be paid at a
distant future tune. The reasonable inference
to be drawn from these facts would seem to be
that the deed was executed under and according
to the original contract, and that a part of
the purchase money, therefore, was not paid at
or before the execution of the deed. And these
facts, it seems to us, should be deemed
sufficient to have put Mrs. Bumstcad on her
guard, and to require that she should have made
the proper inquiry, by which she could have
readily ascertained that the notes for the
$1,500 were still unpaid and outstanding, and
constituted an equitable lien on the land for
their payment.
No brief has been filed in the
case by the appellee's counsel, and hence we
are not directly advised of the grounds assumed
in support of the demurrer in the court below;
but we are informed by the appellant's brief
that it was insisted, in the Circuit Court,
that the lien that might otherwise have
attached, was discharged by a stipulation in
the original executory contract between the
parties. It was therein stipulated that on the
receipt of $1,000 of the purchase money, and
upon the execution by the Alfords of the notes
for the remaining $1,500, Evans should "make
and execute to the said Alfords a good and
sufficient deed in fee simple for said tract of
land, and also give to them possession of the
premises, including houses, free from rent or
charge." And it was urged in the Circuit Court,
as we are informed by the appellant's brief,
that as the vendor's lien for the unpaid
purchase money is a charge upon the land, the
stipulation in the agreement in this case, that
the Alfords were to have the possession of the
lands and houses, "free from rent or charge,"
was a waiver of any lien for the purchase
money, and discharged the land therefrom.
We do
not think that such a conclusion can be
legitimately drawn from that provision or
expression in the contract, when fairly
construed in connection with its other
provisions. The deed was to be made by Evans,
and possession given, when only two-fifths of
the purchase money were paid. Yet it was
provided that the Alfords were to have the
possession of the land and houses, "free from
rent or charge;" that is, free from rent or
charge for, or on account of, such possession
or use of the property. The term "charge" is
used in immediate connection with "rent," and
if not intended to mean the same thing, at
least refers to the same subject matter, viz :
the possession, use and occupancy of the land,
and the houses thereon, and does not, as we
think, have any reference to the equitable lien
or charge upon the land, given by the law, for
the unpaid purchase money.
No other security
was given or provided for, and we see nothing
in the contract indicating any intention on the
part of Evans to waive the lien. We think the
Circuit Court erred in sustaining the demurrer
to the complaint. The judgment is reversed,
with costs.
W. E. Niblack and W. H. De Wolf, for
appellant.
J. G. Jones, for appellees.
Source GoogleBooks, citing: "Reports of
Cases Argued and Determined in the Supreme Court of Judicature of the State of
Indiana By Indiana Supreme Court", Published 1866, Original from Harvard
University, Digitized Aug 14, 2007, (accessed: 15 Nov 2008)
Wife Wins Damages Against Man Who Intoxicated Husband
SALE OF INTOXICATING LIQUORS — EXEMPLARY
DAMAGES.
Schafer v. Smith.
Supreme Court of Indiana, February Term,
1877.
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Hon.
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James L. Worden,
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Chief Justice
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Horace P. Blddle,
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George V. Howk,
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Associate Justices
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Samuel E. Perkixs,
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William E. Niblack,
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1. Constitutional Law. — The 12th section
of the Indiana liquor law of 1873, which
provides that a wife may have a right of action
against the person causing the intoxication of
her husband "for all damages and for exemplary
damages," is not in conflict with the
constitution of the state.
2. Legislative Power
— Fine And Exemplary Damages
Distinguished. — The general rule that,
where an act is the subject of both a criminal
prosecution and a civil action for damages,
exemplary damage will not be allowed in such
action, is a proper subject of legislative
action. There is a distinction between a fine
and exemplary damages; a fine is an amercement
for a past violation of law, but exemplary
damages are intended to prevent a future
repetition of the offense.
3. General And Special Verdict — Excessive Damages.
— Where the general verdict gave the
plaintiff $500 damages, and a special finding
of the jury showed that $200 of that sum was
allowed as exemplary damages, the court above
can not hold that the damages so assessed were
excessive.
Howk, J., delivered the opinion of the court:
This was an action by appellee as plaintiff
against the appellant, as defendant, in the
court below. In her complaint the appellee
alleged in substance that, for twenty years
prior to the commencement of her suit, appellee
had been and then was the wife of one Albert
Smith, upon whose good conduct, frugality and
personal labor she had been and was dependent
for her support; that said Albert Smith, when
not intoxicated, nor under the effects of
intoxication, was an industrious laboring man
and a skillful artisan, and regularly earned
and received for his labor five dollars per
day, applicable to the support of themselves
and family, and which was so applied by him
accordingly; that said Albert Smith was in the
habit of becoming intoxicated, and appellant,
well knowing the same, on divers days and
nights between the 3d day of March, 1873, and
the commencement of said action, at
Petersburgh, in Pike County, Indiana,
unlawfully, willfully, maliciously, and after
notice to him not to do so, sold to said Albert
Smith intoxicating liquors, thereby causing him
frequently to get intoxicated, in consequence
of which he as often became and was infirm and
diseased, and fortimes varying from one to ten
days, and aggregating within said period not
less than six months, or two-thirds of the
whole time, was incapable of labor, and by
reason thereof appellee, as his wife, was
compelled to and did labor for their support;
and that said Albert Smith, while so
intoxicated, and while so infirm and diseased
from the effects of intoxication, was cruel,
morose and unkind in his treatment of appellee,
and entirely helpless and dependent, and, in
addition to the exertion required for the
support of herself and children, imposed upon
her the additional burden of providing him with
necessary food, and wearied her with the labor,
attention and care she was compelled, by his
said conduct, to bestow upon him; whereby
appellee averred that she had been and was
injured in her person, property and means of
support, to her damage $5,000, for which
judgment was demanded.
To this complaint
appellant demurred for the want of sufficient
facts to constitute a cause of action, which
demurrer was overruled, and to this decision
appellant excepted. And appellant then answered
the complaint in denial of its allegations. And
the action, being at issue, was tried by a jury
in the court below, and a general verdict was
returned for the appellee, assessing her
damages at $500. And under the instructions of
the court below, the jury also returned, with
their general verdict, their special finding
upon a particular question of fact stated in
writing, as follows: "State what amount you
allow to plaintiff, if anything, for exemplary'
damages? "Two hundred dollars."
Appellant then,
upon certain written causes, moved the court
below for a new trial, which motion was
overruled, and to this decision appellant
excepted, and judgment was rendered for
appellee upon the general verdict.
Appellant
has assigned in this court two alleged errors,
as follows: 1. Overruling his demurrer to
appellee's complaint; and, 2. Overruling his
motion for a new trial.
It is apparent, from
her complaint, that appellee sued the appellant
in this action to enforce a right of action
which the appellee had under the provisions of
the 12th section of the act then in force, to
regulate the sale of intoxicating liquors,
etc., approved February 27th, 1873. Acts of
1873, 151. It was provided in and by the 12th
section of said act, among other things, that
every wife who shall be injured in person,
property or means of support, by an intoxicated
husband, or in consequence of the intoxication,
habitual or otherwise, of such husband, shall
have a right of action in her name, "against
any person or persons who shall, by selling,
bartering or giving away intoxicating liquor,
have caused the intoxication, in whole or in
part," of her husband, "for all damages, and
for exemplary damages." Acts of 1873, 155.
Appellee's complaint seems to have been
carefully prepared to conform to the
requirements of the said 12th section of said
act, and the demurrer thereto was correctly
overruled.
The second alleged error in the
record of this action was the overruling, by
the court below, of appellant's motion for a
new trial. In his motion appellant assigned
five distinct causes for such new trial, as
follows: 1. The verdict of the jury was
contrary to law; 2. The verdict of the jury was
contrary to the evidence; 3. The assessment of
damages was excessive; 4. Error of the court
below in giving to the jury instructions
numbered 1,2,3,4,5, and 6; and, 5. Error of the
court below in refusing to give to the jury the
instructions asked for by appellant.
As we
understand the brief of appellant's learned
counsel in this cause, all the questions
presented by the alleged erroneous decision of
the court below, in overruling appellant's
motion for a new trial, except such as relate
exclusively to the allowance of exemplary
damages, are expressly waived by appellant in
this court. In other words, it is conceded
that, under the law and the evidence, the
general verdict of the jury, in so far as it
embraced only the damages actually sustained by
the appellee, must be allowed to stand. But,
inasmuch as it appears from the special finding
of the jury, in their answer to the
interrogatory stated to them in writing by the
court, that in their assessment of appellee's
damages, in and by their general verdict, they
had allowed the appellee for exemplary damages
the sum of $200, it is earnestly insisted in
this court, by the learned attorneys of the
appellant, that to the extent of the sum
confessedly allowed by the Jury, as and for
exemplary damages, the damages assessed by the
jury, in and by their general verdict, were
both illegal and excessive. While it is
admitted that the general assembly of this
state, in the enactment of the said 12th
section of the aforementioned act, intended to,
and did give a right of action to the person
mentioned in said section, for the recovery,
not only of actual damages, but also of
exemplary damages, it is urged by appellant
that the general assembly "is prohibited by our
constitution from enacting such a law." In
support of this position appellant directs our
attention to the 14th section of the 1st
article of the constitution of this state,
which provides that "no person shall be put in
jeopardy twice for the same offense." But we
fail to see the applicability of this provision
of our state constitution to the section of the
act now under consideration. We recognize the
rule which ordinarily prevails, that, where a
given act is, or may be, "the subject of a
criminal prosecution and also of a civil action
for damages in favor of the partythereby
injured, exemplary damages will not be allowed
in such action." This rule, however, like most
of the rules of civil practice, is a proper
subject of legislative action, and the general
assembly may well provide in such a case as the
case at bar, that the injured party may
recover, not only actual damages, but also
exemplary damages, and the courts of the state
will be bound to carry out and enforce such
provision.
In considering this subject,
appellant's counsel seem to confound the terms
fine and exemplary damages, and to regard the
one as the synonym of the other; but there is a
marked and well-defined difference between the
meaning of these terms. A fine is an amercement
imposed upon a person for a past violation of
law; but exemplary damages have reference
rather to the future than the past conduct of
the offender, and are not given as a
compensation to the injured party, but as an
admonition to the offender not to repeat the
offense. We can not hold in this case that the
damages assessed by the jury in their general
verdict were excessive, because it appeared
from the special finding of the jury that
two-fifths of the damages assessed were
exemplary damages. And the general question, as
to whether the damages in any case are or are
not excessive, is one peculiarly within the
province of the court below. That court has the
opportunity of seeing and, to some extent,
knowing parties, witnesses and jurors, and
therefore has facilities, that we can not have,
for determining whether the verdict is just and
right or is the result of passion or prejudice.
In this case the court below passed upon the
questions presented by appellant's motion for a
new trial, including the question of excessive
damages, and we can not see that the court
below erred in overruling the motion for such
new trial.
The judgment of the court below is
affirmed at appellant's costs.
From GoogleBooks.com citing
"The Central Law Journal" Published by Soule,
Thomas & Wentworth, 1877
(accessed 22 Dec 2008)
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