Imágenes de páginas
PDF
EPUB

Walker et at. r. Hill et at.

the disability of infancy; but it is also true that, as to each of them, the disability of infancy was removed much more than two years before they commenced this action. Under our law the statute of limitations began to run against the appellants, notwithstanding their infancy, when their causes of action herein accrued, and the only effect of such disability was to give each of them, if the full limitation had run during his or her infancy, two years after the disability was removed within which he or she might sue. Section 296, ft. S. 1881; Wright v. Kleyla, 104 Ind. 223.

It is true, also, the court further found that appellant Eleanor Baxter, after her causes of action herein had accrued and before she was of lawful age, had intermarried with Joseph K. Baxter, and had been since and still was his wife. But the statute of limitations had already commenced to run against her before her marriage, and her disability of coverture could not be tacked to her disability of infancy to stay the operation of the statute. The rule in such case is, that where it is incumbent on the plaintiff to show that he or she labored under any. disability, it must be shown to be a continuing disability from the first, and that when the statute has once begun to run no subsequent disability will impede it. Kistler v. Hereth, 75 Ind. 177; White v. Clawson, 79 Ind. 188; Knippenberg v. Morris, 80 Ind. 540; Sims v. Gay, 109 Ind. 501.

Upon the facts found by the court, there is no error, we think, in its conclusion of law. The judgment is affirmed, with costs. Filed June 14, 1887.

Worley v. Sipe.

No. 12,117.

[HI 8g WOBLEY V. SlPE.

Ill 238

144 14 Contract.Conveyance.Married Woman.Release of Inchoate Interest.— lYP~;);1s Consideration.Statute of Frauds.—The complaint in this case alleged that 148 64a the plaintiff's husband sold a tract of land belonging to him to the de166 ^ fendant, the plaintiff joining in the conveyance; that the consideration 156 6741 for the land and the conveyance was the promise of the defendant to pay her five hundred dollars, it being agreed that he should sell the land as soon as he could procure a purchaser and pay said sum to plaintiff; that he had had frequent opportunities to sell the land for its full value, but had neglected and refused to do so; that he had refused to pay plaintiff the agreed sum; that he denied making the promise, and claimed that he was under no obligation to pay her any amount whatever.

Held, that the contract is supported by a sufficient consideration, is not within the statute of frauds, and that the complaint is good on demurrer.

From the Delaware Circuit Court.

R. S. Gregory, A. C. Silverburg and C. W. Moore, for appellant.

W. W. Orr and J. E. Mellette, for appellee.

Zollars, C. J.—Appellee alleged in her complaint, in substance, that in 1879 her husband was the owner of a tract of land which he sold to appellant; that the consideration for the land, and the conveyance by her and her husband, was a promise on the part of appellant to pay to her the sum of five hundred dollars; that it was agreed that appellant should sell the land after it should be conveyed to him, as soon as he could procure a purchaser therefor, and pay to appellee the agreed sum of five hundred dollars; that appellant had had frequent opportunities to sell the laud for its full value, but had neglected and refused to sell it; that he had refused to pay to her the five hundred dollars, denied ever having promised to pay the same, and claimed that he was not under any obligations to pay her that, or any other amount.

The court below overruled a demurrer to the complaint. That ruling appellant has assigned as error.

His contention, as we understand the argument of his Worley r. Sipe.

counsel, is: First. That the complaint shows that the amount is not due. In other words, that, according to the averments in the complaint, the amount was not to be paid until appellant should sell the land, and that it was a matter purely optional with him as to when he should sell it. Second. That as the agreement to pay to appellee the five hundred dollars was not in writing, it was within the statute of frauds, and can not be enforced; first, because it was a contract for the sale of land, and second, because it was a contract not to be performed within one year. R. S. 1881, section 4904.

That there was a sufficient consideration for the promise is clear. The release of appellee's inchoate interest in the land was a sufficient consideration. Jarboe v. Severin, 85 Ind. 496; Hollowell v. Simonson, 21 Ind. 398; Brown v. Rawlings, 72 Ind. 505.

Here, however, it appears, from the averments in the complaint, that the consideration for the agreement on appellant's part was not only the relinquishment by appellee of her inchoate interest in the land, but, also, the sale and conveyance of the land by the husband.

The contract which appellee is seeking to enforce is clearly not a contract for the sale of land. The sale of the land was perfected and fully executed by the execution of the deed and the possession given to, and accepted by, appellant. Nothing remained but the payment of the purchase-money; that may be recovered, notwithstanding the statute. Sands v. Tliompson, 43 Ind. 18 (22); Huston v. Stewart, 64 Ind. 388 (395); Reyman v. Mosher, 71 Ind. 596; Arnold v. Stephenson, 79 Ind. 126.

Nor was the contract for payment set up in the complaint within that clause of the statute which provides that no action shall be brought upon any agreement not to be performed within one year, unless the agreement is in writing. Hill v. Jamieson, 16 Ind. 125; Fall v. Hazelrigg, 45 Ind. 576; Baynes v. Chastain, 68 Ind. 376 (380); Cole v. Wright, 70 Ind. 179 (197).

The City of Indianapolis v. Vajen.

The demurrer admits as true the averments of the complaint, that appellant agreed to sell the land and pay to appellee the five hundred dollars as soon as he could find a purchaser; that he had had frequent opportunities to sell it for its full value, but neglected and refused to sell, and finally denied the existence of any agreement or any liability.

Whatever might otherwise be said of the agreement to pay, and the duty of appellant to sell the land within a reasonable time, it is certain that he can not deny the existence of the agreement, and at the same time insist upon its terms to show that the amount is not due. Having denied the existence of the agreement, and having refuted to pay upon that ground, he is no longer in a position to insist that the amount can not become due until the sale of the land, and that he may consult his own convenience as to when he shall sell it. Durland v. Pilcairn, 51 Ind. 426, and cases there cited; Fry v. Louisville, etc., R. W. Co., 103 Ind. 265.

The demurrer to the complaint was properly overruled.

There is evidence tending to sustain the verdict and judgment in favor of appellee; this court can not, therefore, reverse the judgment upon the weight of the evidence.

Judgment affirmed, with costs.

Filed June 14, 1887.

[ocr errors]

111 240 152 248

[ocr errors]

The City Op Indianapolis V. Vajen.

Taxes.Assessment of National Sank Stock.Right of Owner to Deduct Indebtedness.—The owner of national bank stock is entitled to deduct from its Vbi 577! value, if he have no other credits from which the deduction can be made, the amount of the bona fide debts owing by him. Same.Refusal to Allow Deduction.—Erroneous AssessmentCity. Refunding Taxes Erroneously Collected.—Where a taxpayer, in making his assessment list for city taxation, gives notice of his indebtedness, but does The City of Indianapolis v. Vajen.

not enter it upon his list, and demands of the assessor the right to deduct from the value of his national bank stock the amount of his bona fide indebtedness, which that officer refuses to allow on the ground that such deduction is not authorized by law, and afterwards makes a ■ like demand of the city treasurer before paying his taxes, which is also refused, the assessment, to the extent of the deduction improperly denied, is erroneous, and the taxpayer is entitled to have the excess of taxes collected refunded, whether paid voluntarily or not, and without appearing before the board of equalization and there attempting to have the assessment corrected.

From the Marion Superior Court.

C. S. Denny,for appellant.

/. S. Duncan, C. W. Smith and J. R. Wilson, for appellee.

Mitchell, J.—Vajen recovered a judgment against the city of Indianapolis in the court b.elo\v for the amount of taxes alleged to have been erroneously assessed against and collected from him, by the city, through its officers, on account of certain shares of stock in a banking association, organized under the laws of the United States.

The facts material to be stated, as specially found by the court, are, briefly,as follows: On the 1st day of April, 1880, Vajen was the owner of 336 shares of the stock of the Citizens National Bunk of Indianapolis, which stock was of the face value of §100 per share. He was at the same time indebted to an amount largely in excess of the value of his stock. In assessing national bank stock, it was the uniform habit of the city assessor to refuse permission to the plaintiff, and all other owners of national bank stock, to deduct the amount of their indebtedness from the value of their shares. Substantially, the only credits due the plaintiff at that time from which his indebtedness could have been deducted were his bank stock. The cashier of the bank made out duplicate statements, showing the number of shares comprising the capital stock of the bank and the residence of each stockholder, and the number of shares owned by each, according ■to the provisions of section 64, vol. 1, R. S. 1876, 89 (section Vol. 111.—16

« AnteriorContinuar »