Colerick v. Hooper

Perkins, J. This was a bill in chancery to enforce the specific performance of an agreement for the sale of a lot in the town of South Bend. A decree for performance was obtained. It is claimed that that decree should'be reversed for the following reasons: 1. The decree was rendered upon default, and the record, as first brought into this Court, did not show notice to the defendants. By certiorari, a new transcript was [317] obtained, wherein, by order of the Court below, made after the certiorari was issued, the clerk had copied the writs and returns of services thereon which remained on file in his office, and which showed that notice was duly given to the defendants in the suit. It is denied that the Circuit Court had power to order the clerk to copy the writs and returns into the record after the expiration of the term of the Court at which the decree in the cause was made, and after the issuing of the certiorari. But we think the Court had such power. It was made to appear, at the time the Court entered said order, that, on taking the default in the cause, proof of the service of the writs was duly made to the Circuit Court. It was a clerical error, therefore, by which the entering of those writs and returns, or, in lieu of them, a statement that process had been duly served, was omitted. 2. It is contended that the returns upon the writs do not show that legal service had been made. They are as follows: “Came to hand January 10th, 1844. Served on John A. Henricks the 12th day of January, 1844. As to Alexis Coguillard and David H. Golerick, they are not found in my bailiwick. Sheriff’s fees,” &c., and signature of sheriff. “ Served as commanded on D. H. Colerick, January 23d, 1844. Not found as to the other defendants. Service,” &c., and signature. The bill was dismissed as to Coquillard. It is objected that these returns do not specify the manner of service, and claimed that they should do so with particularity. It would have been well to have stated whether the service was upon the defendants personally or by leaving copies at their places of residence; but we think a legal service shown with reasonable certainty. The officer says he served the process on some, and could not find other of the defendants. The inference is, that a personal service was made upon those found. 3. It is argued that the contract sought to be specifically [318] enforced is too vague to sustain the bill. The following is a copy of it: “ I have this day sold my lot to Alexis Coquillard on the plat in the town of South Bend; on the plat of said town on the river bank. I have received value and will make the deed as soon as convenient. August 11, 1835. D. H. Colerick. Attest: H. R. Colerick This memorandum contains the names of the parties, acknowledges the reception of the consideration, thus rendering it immaterial that its amount or character should be particularly stated, and describes the property sold, not with the utmost certainty it is true, but so that it could be indentified; and parol evidence for that purpose would be admissible. Such evidence would not be required in this case to make out the terms of the agreement, but to apply the agreement to the subject-matter of it. The thing sold was Colerick's lot on the river-bank in the town of South Bend. The written contract assumed that he had one lot on said bank in said town, and implied that he had but one. Which was it, was the only remaining question to be settled. This question could be easily answered from the data given for identifying the lot. And where a written instrument contains all the facts of a contract, except such as may legitimately be proved by parol evidence, where there is a written agreement, that instrument is sufficiently certain to be enforced. The bill, in this case, avers that Colerick had, at the date of said agreement, one lot, and but one, in said town, and that it was lot No. 94, for which a conveyance was sought in this suit. We think the bill sustainable. 4. As we have stated, the final decree in this cause was taken proconfesso, on default; and it is urged that the Court erred in not requiring proof of the allegations in the bill before the rendering of such a decree. There is not a uniformity in the practice of Courts upon this point. See the cases collected in the 1st vol. of Dan. Ch. Pr., Perk. Ed., in notes on page 577. But a line of decision has been pursued in this state long enough to settle the [319] rule here. That rule, we think, may be stated to be, that where the bill is against adult residents of the state, who are personally served with notice, and the allegations of the bill are certain — especially, if the subject-matters of those allegations are of a definite aud certain nature — a final decree, after a decree pro confesso, may be rendered without proof. Thus broadly, at any rate, we are safe in laying down the rule, and, so laid down, it includes this case. Here every material allegation in the bill, except as to the number of the lot, was supported by the agreement in writing, copied into the bill, and as to the number of the lot, the allegation was certain and the subject-matter of it was of a definite character. See Pegg v. Davis, 2 Blackf. 281.— Platt v. Juclson, 3 id. 235.—Fellows v. Shelmire, 5 id. 48.—Close v. Hunt, 8 id. 254.— Trimble v. White et al., 2 Carter’s Ind. R. 205.—Bowman et al. v. Hall et al., id. 206. J. G. Walpole and R. L. Walpole, for the plaintiffs. J. L. Jernegan, for the defendant. 5. The fifth point raised is, that no decree could be rendered in the case till Coquillard was made a party. He was the first assignor of the instrument on which the bill was founded. By our statute, the assignment of such an instrument carries with it the legal title and not a mere equity, and Coquillard does not appear to have any further interest in that in question. We think, therefore, that, though a proper, he was not a necessary party. Our statute (R. S. sect. 41, p. 839) enacts that— “If the defendant, at the hearing of a cause, object that the suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified, by name or description, the parties to whom the objection applies, the Court, if it think fit, shall be at liberty to make a decree saving the rights of the absent parties.” No rights of Coquillard can be prejudiced by the decree rendered in this case, and no objection was made below. Per Curiam. The decree is affirmed with costs.