Thian v. Gill

Yanderburgh, J. For the determination of the merits of this controversy, the record would have been more satisfactory if the defendant had put in more evidence, some of which must have been within his reach or knowledge. He chose rather to depend upon technical objections to the plaintiff’s case, and we think judgment was rightly ordered against him. On June 16, 1887, Potter & Thompson were the owners of the'lot in controversy.' On that day they contracted to sell and convey the same to one Bosella Howe, and gave her the right of possession by the terms of the contract until she should make default under the same. It does not appear what has become of her equitable interest in the land, and this is the gravamen of the defence. But on the 8th day of November, 1887, the defendant, assuming to contract as owner, entered into a written agreement with plaintiff’s intestate, containing mutual covenants, whereby he agreed to convey the same lot to the decedent by a good [460] and sufficient warranty deed, upon the performance by the latter of certain conditions therein expressed. This contract contemplated an exchange of lands. Afterwards, on the 6th day of December, 1887, Potter & Thompson conveyed the premises by warranty deed to the decedent, which conveyance was procured to be made in fulfilment of defendant’s contract with plaintiff above mentioned, and at his request. Defendant does not claim that the plaintiff’s intestate has failed to comply with the contract on his part. Upon this state of facts the plaintiff ought to recover the possession of the premises, as against the defendant. The contract and deed procured^and accepted in fulfilment thereof effectually disposed of all his right and interest in the premises, whatever they may be, including the possession. He will not be permitted to shield himself behind the outstanding contract in favor of Howe, whom, the testimony shows, he assumed to represent in procuring the deed from Potter & Thompson to the decedent. That this deed was so procured at defendant’s instance was properly shown by parol, and it is not necessary to consider whether further evidence, tending to show. that plaintiff’s intestate executed to defendant a deed of certain lands agreed to be conveyed by him to defendant by the same contract, was competent, because it was immaterial under the issues, and was without prejudice. Order affirmed.