Bell's Administrator and Another v. Ayres and Wife. BELL'S Administrator and Another v. AYRES and Wife. Suit by a legatee against the administrator, and a creditor of the estate, alleging that the administrator had fraudulently allowed and paid the creditor's claim, knowing it to be unjust, and that by such payment the assets of the estate would be so reduced as to be insufficient to pay plaintiff's legacy. Prayer, that the allowance of the claim, and the report thereof by the administrator, be set aside, and the plaintiff allowed to contest the claim. Held, that the plaintiff showed a sufficient interest to enable him to sue. Held, also, that as the relief sought could not have been obtained by an appeal from the order of the court allowing the claim, the remedy sought was an appropriate one. APPEAL from the Hendricks Common Pleas. ELLIOTT, C. J.-Complaint by the appellees against Darnall, administrator of the estate of Mary Bell, deceased, and William Arnold, to set aside the allowance by the administrator of a claim filed against the estate by Arnold, as fraudulent; and also the report thereof to the court by the administrator. Issues of fact were formed and submitted to a jury, who found for the plaintiffs. Motion by the defendant in arrest of judgment overruled, and judgment on the finding of the jury. The defendants appealed. The only question arising upon the record, on the motion in arrest, is, do the facts stated in the complaint constitute a valid cause of action? We think they do. The complaint alleges that Mary Bell, by her last will and testament, bequeathed to the said Mary Ayres the sum of $250, to be paid to her after the payment of the just debts against the estate; that on the 24th of September, 1863, the administrator admitted a claim, filed against the estate by the said Arnold, of $314 58, and credited the amount thereof on a note due. to the estate by said Arnold; that the administrator afterward reported the receipt of Arnold for the amount of said claim to the court, and was, by the court, allowed therefor; that the claim of Arnold was unjust and fraudulent, of which the administrator had notice, but that Bell's Administrator and Another v. Ayres and Wife. combining and confederating with said Arnold to cheat and defraud the estate, and said plaintiffs, the administrator had fraudulently allowed the same, and that by the allowance thereof, the assets of said estate in the hands of the administrator will be so reduced in amount as to render the estate unable to pay the legacy to the said Mary Ayres. The complaint prays that the allowance of the claim of Arnold by the administrator, and the allowance of the receipt therefor by the court, be set aside, and the plaintiffs be permitted to contest the same, and for general relief. The jury found for the plaintiffs, and that there was due to said Arnold the sum of $64 50, for funeral expenses paid by him, and for attention to deceased during her last illness. It will be observed that the complaint shows a sufficient interest in the plaintiffs, in the subject matter, to enable them to sue. It avers that the claim of Arnold was unjust and fraudulent, and that the administrator, knowing that fact, had fraudulently allowed it. It is urged that a copy of Mary Bell's will should have been made a part of the complaint. We do not think so. The alleged fraudulent conduct of the administrator, and not the will, is the foundation of the suit. But it is insisted that the plaintiffs have mistaken their remedy; that they should have appealed from the order of the Common Pleas Court, allowing the receipt of Arnold as a credit in favor of the administrator. The plaintiffs were certainly without remedy in that mode of procedure. They were not parties to the settlement or allowance by the court; there was nothing in the record, in that respect, that would enable this court, on such an appeal, to grant them any relief. But it is also urged that the suit should have been against the administrator, on his bond, and not to set aside the allowance of the claim. Perhaps the facts stated are sufficient to render the administrator and his sureties liable on his bond, but we think that is not the only remedy; on the contrary, we are of opinion that the remedy sought was not only a legitimate, but a very appropriate one. The motion in arrest was correctly 24 94 156 670 Sterling v. Klepsattle. overruled, and the judgment of the court below should therefore be affirmed. The judgment is affirmed, with costs. C. C. Nave, for appellants. L. M. Campbell, for appellees. STERLING V. KLEPSATTLE. SPECIFIC PERFORMANCE.-The rule that a court will not compel specific performance, unless it can, at the time, execute the whole contract on both sides, or, at least, such part of it as the court can ever be called upon to perform, is subject to some exceptions. In cases of contracts where the consideration is entire, but the performance separate, this rule does not always prevail. SAME.A sold to B a tract of land, and put him in possession, agreeing to execute to him, on payment of the purchase money, a title bond, conditioned for the execution of a deed, as soon as A got his deed. Suit by B to compel the execution of the title bond, alleging payment of the purchase money. Held, that B was entitled to a decree for the specific performance of the contract. APPEAL from the Allen Circuit Court. GREGORY, J.-Suit by Klepsattle against Sterling, to enforce the specific performance of a contract. It is averred in the complaint that on the 15th of February, 1858, the plaintiff purchased of the defendant certain described land, for the sum of fifty dollars, and that the defendant put the plaintiff in possession of the premises, and agreed with him to execute a title bond therefor on the payment of the purchase money, conditioned for the conveyance thereof to the plaintiff as soon as the defendant got his deed for said land; that the plaintiff has fully paid the defendant for said land, and demanded the title bond, which the defendant refused to execute, &c. A demurrer was overruled to the complaint. The defendant answered in two paragraphs, amounting substantially Sterling v. Klepsattle. to the general denial. Trial by jury; special findings, on which the circuit court decreed specific performance of the agreement charged in the complaint. The evidence is in the record, and makes a strong case for the plaintiff; and the only question in the record is, has a court of equity power to decree the specific performance of such an agreement? It is urged that this contract is one and indivisible, and therefore the plaintiff has failed to show that he is entitled to specific performance, as complete relief cannot now be obtained, the defendant not having the legal title to the land. The rule that a court will not compel specific performance, unless it can, at the same time, enforce, the whole contract on both sides, or, at least, such part of it as the court can ever be called on to enforce, is subject to some exceptions. In cases of contracts where the consideration is entire, but the performance separate, the rule does not always prevail. The case of Avery v. Langford, 1 Kay's Reports, 663, was this: "In 1852, the plaintiff, Avery, was a general merchant, residing in Boscastle, in Cornwall, and trading in coals, timber, building materials, lime, corn, malt, manure, and other articles of general merchandise, and the defendant, Langford, was also a general merchant at Boscastle; and litigation having arisen between them as to the boundary of certain lands belonging to the plaintiff and defendant, it was compromised upon the terms contained in a written. agreement, entered into between them in March, 1852, which were, in effect, that the plaintiff should purchase of the defendant, for the sum of £1600, all the defendant's lands at Boscastle, within certain limits, free from incumbrance; Mr. Langford to enter into bond conditioned to pay as liquidated damages to Mr. Avery the sum of £2000, if the said Langford be, after the 29th day of September next, concerned in any trading establishment within the district comprised between Morwenstow and New Quay, and Sterling v. Klepsattle. Launceston and Bodmin. This was a suit by Avcry for specific performance of this agreement. Decree: specific performance, with costs; the form of the bond to be settled in chambers, if the parties differ." When it is remembered that a court of equity will restrain by injunction the violation of such an agreement, and perhaps decree specific performance, (Beard et al. v. Dennis, 6 Ind. 200,) this case bears a strong analogy to the case at bar. Mr. Fry, in his work on Specific Performance, on the authority of the case of Granville v. Betts, 19 L. J. Ch. 32, says: "But where the contract is to do a thing, and to execute a deed for that purpose, and this deed is not merely incidental, but, so to speak, covers the whole of the executory part of the contract, the court will, it seems, enforce the contract by the execution of the deed, though the acts to be done be future, and to be done from time to time." In the case of Ogden v. Ogden, 4 Ohio State Rep. 182, it was held that an agreement to execute a mortgage to pay money at a future day would be specifically decreed. A deed of defeasance will be required to be executed, when, by fraud, accident, or mistake, the grantee has failed to execute it. 3 Atkyns 389; 2 id. 258; id. 99. We take it for granted that the defendant, as he put the plaintiff in possession of the land, and agreed to make a conveyance when he got his deed therefor, was, at the time, the equitable owner of the land, with the right of possession, and as the record shows this, and that the defendant would not be entitled to his deed for some time thereafter, we think that a specific performance may be decreed. The purchase money being fully paid, a title bond, with the right of possession, will forever, under our statute, (2 G. & H., § 596, p. 283,) protect the plaintiff in his possession, and make the deed of conveyance more a matter of form than otherwise. We think substantial justice was done in this case. 2 G. & H., § 101, p. 122. |