Frazier v. Harris

Downey, J. This was an action by the appellee against the appellant, for a breach of the covenants in a warranty deed of real estate. It is alleged that'the real estate was encumbered when sold and conveyed, and that the plaintiff [157] was compelled to and did pay off the incumbrance to prevent a sale of the land. The complaint was held" good on demurrer. The defendant answered in twelve paragraphs. The plaintiff demurred to all the paragraphs except the first, which was a general ■denial. The demurrers were sustained to the fourth, fifth, sixth, seventh, ninth, tenth, eleventh and twelfth, and overruled as to the second, third and eighth; reply in denial of the second, third and eighth; also a second paragraph of reply to the third paragraph of the answer, a demurrer to udiich reply was filed and overruled. There was a trial by the court, a finding for the plaintiff, a motion for a new trial overruled, and final judgment for the plaintiff on the finding. The first alleged error is the overruling of the demurrer to the complaint. The second, third, fourth, fifth, sixth, seventh and eighth assignments are based on the rulings of the court sustaining the demurrers to the fourth, fifth, sixth, .seventh, ninth, tenth and twelfth paragraphs of the answer. The ninth alleges error in overruling the demurrer to the second paragraph of the reply to the third paragraph of the answer. The tenth, eleventh and twelfth assignments present no question. The thirteenth is as follows: “ The court erred in overruling the appellant’s motion for a new trial, and in rendering judgment for appellee, for the reason that the complaint, as amended, does not state facts sufficient to constitute a cause of action.” The first objection" urged to the complaint is, that the copy •of the deed on which it is founded is not found immediately following it in the record. The deed is set out in extenso in the bill of exceptions, and the clerk states in • the record, immediately after the complaint: “ The deed of the defendant Frazier and wife to the plaintiff, Noah Harris, as marked filed with the above complaint, hereafter appears in the record in the bill of exceptions.” "We think it sufficiently appears that the copy of the deed was filed with the complaint, and that there is no substantial [158] objection to the complaint on this ground. Smith v. Lisher,. 23 Ind. 500; Kesler v. Myers, 41 Ind. 543. It is further objected to the complaint, that it is bad for the reason that it shows that the plaintiff bought the land of' the defendant pending a suit concerning it, and that therefore the sale and the deed were void. Counsel quote 4 Kent Com. 449, where he says: “It is the settled doctrine in England and in New York, and probably in most of the other states, that the purchase-of land pending a suit concerning it is champerty; and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain.” The question was before this court in West v. Raymond, 21 Ind. 305; and Rowe v. Beckett, 30 Ind. 154; Truitt v. Truitt, 38 Ind. 16, and cases cited; Kern v. Hazlerigg, 11 Ind. 443. In the case we are considering, the incumbrance on the-land was a lien, and an action had been commenced to-enforce the lien, and was pending when the deed was made-on which the action is founded. The title or ownership of the land was not in controversy. It does not appear from, the complaint that the plaintiff, when he purchased the land, had any actual notice of the pending action to enforce the lien. In the case of Jackson v. Ketchum, 8 Johns. 479, referred to by Chancellor Kent, the pending action was ejectment, and a verdict had been returned by the jury, of which the purchaser had notice when the conveyance was made. Kent, in the passage 'quoted by counsel, says the purchase is void, if made with a knowledge of the suit, etc. We think the facts disclosed in the complaint do not show that the deed was void on account of the pendency of' the action to enforce the lien. Counsel do not attempt to sustain any of the paragraphs of the answer to which demurrers were sustained, except the-sixth. We think this paragraph was insufficient and unnecessary. The same matter is in other paragraphs which were held good. We do not deem it necessary to copy the para [159] graphs in this opinion. Counsel do not urge the ninth assignment of error. We see nothing in it. The thirteenth assignment does not allege generally that the court erred in overruling the motion for a new trial, but it states that the court .erred in overruling the motion, for a new trial, and in rendering judgment for appellee, for the reason that the complaint, as amended, does ,not state facts sufficient to constitute a cause of action. If the assignment in this form presents any question, it is the question as to the sufficiency of the complaint, and that has already been considered and decided. The judgment is affirmed, with three per cent, damages and costs. Petition for a rehearing overruled.