Meyer v. Yesser

Elliott, J. The ruling of the circuit court, in overruling the demurrer to the second paragraph of the answer, presents the only question in the case. The question is, are the facts alleged in the paragraph sufficient to bar the action? We think not. It will be observed that the answer seeks to defeat the action by attacking the validity of the bond referred to in the complaint, only by the allegation that the appellant fraudulently, and without the knowledge or consent of the defendant, procured the bond to be so drawn as to make the purchase money become due on the 25th of December, 1868, instead of the 25th of December, 1867. It admits all the other allegations of the complaint. It admits that the contract, with the exception stated, was made as alleged in the complaint. It admits the payment of the interest on the purchase-money, at the rate stipulated, to the first of December, 1867, and the tender of the whole of the purchase money, and the residue of the interest on the 23d of January following. Under this state of facts, it is not perceived how the defendant was injured by the alleged fraud; and fraud without injury is never available as a defense in equity. There is nothing in the bond or the answer to show that time was of the essence of the contract; so that if it had been stipulated in the bond that the purchase-money should become due on the 25th of December, 1867, as the defendant claims it should have been, and the money had been tendered on the 23d of the following month, as it is averred in the complaint, equity would have compelled a specific performance [298] of the contract. "What injury, then, has the defendant suffered by the alleged fraud ? W. M. Land and G. Denby, for appellant. J. S. Buchanan and II. G. Gooding, for appellee. But if the bond were void for the frauds alleged, still the appellant would be entitled, under the facts stated in the complaint, to a specific performance. It appears by the complaint, that the original contract was made on the 8th of September, 1862, by parol; under which possession of the land contracted for was given by the defendant to the appellant a year before this bond was executed, which he ever afterwards continued to hold; that he had made lasting and valuable improvements on the land, and had paid the interest on the purchase-money to the 25th of December, 1867, and tendered to the defendant the principal and the residue of the interest on the 23d of January, 1868, and demanded a deed. These facts took the case out of the statute of frauds, and, independent of the bond, entitle him to a specific performance. They are all admitted by the answer, but are not avoided, and the answer is, therefore, bad. The appellee assigns as a cross error, the sustaining the demurrer to the third paragraph of the answer, which is discussed by her counsel. But the record fails to show that a demurrer to that paragraph was either filed or sustained. On the contrary, it shows that the third paragraph was stricken out on motion; after which it no longer formed a part of the record, and could only be made so by a-bill of exceptions, which was not done.. Although it is improperly copied into the record by the clerk, it is. not properly before us, and no question is there presented upon it. The judgment is reversed, with costs, and the cause remanded to the circuit court, with directions to sustain the demurrer to the second paragraph of the answer, and for further proceedings, not inconsistent with this opinion.