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Brownlee v. The Board of Commissioners of Madison County.

J. F. McDowell, H. D. Thompson and J. A. Kersey, for appellant.

NIBLACK, J.-Action by James Brownlee, as assignee of Gimason Broyles, against The Board of Commissioners of the County of Madison, upon an order issued by the auditor upon the treasurer of that county. The complaint was in three paragraphs, each counting upon the order in a form somewhat different from the others, and each making a copy of the order, and the endorsement thereon, a part of the paragraph.

The order was as follows: “No. 513. Taxes refunded, $61.65; auditor's office, Anderson, Indiana, June 30th, 1877.

“ Treasurer of Madison county, Indiana, pay to Gimason Broyles the sum of $61.65, for taxes refunded on congressional school lands, as allowed by the commissioners' court of said county, at their special June term, 1877. This order is drawn subject to all taxes due from the holder. This order due and payable June 30th, 1878, with 8 per cent. interest from date. Receivable for all county taxes. “Attest:

John L. FORKNER,

“Auditor Madison Co." Endorsed : “ GIMASON BROYLES." The defendant demurred to the complaint, upon the grounds :

1. That it did not state facts sufficient to constitute a cause of action.

2. That the court had no jurisdiction of the subject matter of the action.

The demurrer was sustained, and the plaintiff declining to plead further, final judgment was rendered against him upon demurrer.

The only question presented is, was the complaint sufficient upon demurrer? An order, such as that sued upon in this case, is, in legal effect, the promissory note of the county, is assignable, and is presumed to be upon a sufficient consideration. The Board of Commissioners of Floyd Co. v. Day, 19 Ind. 450.

The defendant has failed to file a brief in the cause; we

Smith et al. v. Bissell, Trustee.

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have, therefore, no suggestion of any defect in the complaint, either formal or otherwise.

The act of February 8th, 1877, Acts 1877, Reg. Sess., p. 139, absolutely prohibits the commissioners of the several counties from refunding taxes paid on school lands in a large class of cases; but it does not prohibit the refunding of such taxes in every conceivable case. We must, therefore, assume that the taxes ordered to be refunded in this case were paid upon

school lands of a class different from those enumerated in that act, upon the principle that both the commissioners and the auditor must be presumed to have done their duty in the premises, until the contrary is made to appear. If the taxes for which the order in suit was given were of the class which the act of February 8th, 1877, supra, prohibits from being refunded, that was a matter to be set up as a defence to the complaint.

We see no substantial objection to the sufficiency of the complaint.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

No. 9223.

SMITH ET AL. v. BISSELL, TRUSTEE.

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SUPREME COURT.— Weight of Evidence.—The Supreme Court will not disturb
a finding on the mere weight or preponderance of the evidence.
From the Marion Superior Court.
J. M. Judah and A. S. Caldwell, for appellants.
B. Harrison, C. C. Hines and W. H. H. Miller, for appellee.

FRANKLIN, C.—Bissell commenced this action to obtain judgment for the possession of real estate and damages for

Smith et al. v. Bissell, Trustee.

the detention thereof. Issue was formed by a denial; trial by the court; finding for the plaintiff, and, over a motion for a new trial, judgment was rendered in his favor for possession and $100 damages.

The overruling of the motion for a new trial has been assigned as error. The reasons for a new trial were: The finding was not sustained by the evidence, and was contrary to law. The defence relied upon was, that the defendants occupied the premises as tenants of the plaintiff. It was shown by the evidence, and admitted by the defendants, that the plaintiff held the legal title to the premises. Plaintiff's agent testified that there was a talk with defendants about renting ; that he asked as plaintiff's agent $40 per month rent, and defendants only offered $25; that “after looking the premises over together, and again discussing the question of rental, I left him stating, that as we differed so materially, we would let the matter rest until Mr. Drew should come up to the ci He has not come yet. Afterwards, I was instructed by Mr. Bissell to get possession, and accordingly notified Mr. Smith that we must have possession." And although Mr. Smith testified that there was an agreement for him to occupy the premises and pay rent, still the evidence on behalf of the appellee tended to support the finding of the court, and in such cases this court will not undertake to weigh the evidence and disturb the finding.

There was no error in overruling the motion for a new trial. The judgment below ought to be affirmed.

PER CURIAM.—It is therefore ordered, upon the foregoing opinion, that the judgment of the superior court in general term, affirming the judgment in special term, be and the same is in all things affirmed, with costs.

ELLIOTT, C. J., having tried the case, did not participate.

Pulse et al. v. Miller et al.

81 190 127 532

No. 8830.

PULSE ET AL. v. MILLER ET AL.

81 1900 128 246

81 190 132 385 81 190 138 107 81 190 141 600

81 190 164 470

STATUTE OF FRAUDS.-Contract for purchase of Real Estate.- Description.- Pre

sumption.—A contract recited that “ The parties of the first part having conveyed certain lands” (not described, except in a certain township and county), “ in part, agree to have the same completed within twenty days, or pay to the parties of the second part $500; and the parties of the second part agree to comply with the contract on completion of the

deeds, or pay to the parties of the first part $500.” Held, in an action thereon, that the agreement was within the statute of

frauds, the land not being so described as to be capable of identification, and the presumption being that the contract referred to was in parol.

From the Shelby Circuit Court.
E. P. Ferris, W. W. Spencer and A. F. Wray, for appellants.
T. B. Adams and L. T. Michener, for appellees.

ELLIOTT, C. J.—The complaint of the appellants is based upon the following contract: “Articles of agreement made and entered into by and between Hiram Pulse, George Pulse, Reuben Pulse, Peter Pulse and Florence Miller, of the first part, and William Miller and Jasper Heck, of the second part.

“The parties of the first part having this day conveyed certain lands situate in Liberty township, Shelby county, Indiana, in part, agree to have the same completed within twenty days, or pay the parties of the second part the sum of five hundred dollars, and the parties of the second part agree to comply with the contract on completion of the deeds, or pay to the parties of the first part the sum of five hundred dollars.” This agreement is properly signed.

It has long been the rule in this State, that a defendant may avail himself of the benefit of the statute of frauds, if it appears upon the face of the complaint that the case is within the statute. We are, therefore, required by the demurrer to the complaint to determine whether the statute constitutes a bar to the recovery sought by the appellants.

A contract for the conveyance of lands must describe the

Pulse et al. v. Miller et al.

one.

property upon which it is intended to operate. If there is no description of the land, the statute prohibits the enforcement of the agreement. Newman v. Perrill, 73 Ind. 153; Dingman v. Kelly, 7 Ind. 717; Baldwin v. Kerlin, 46 Ind. 426; Miller v. Campbell, 52 Ind. 125.

Recourse can not be had to parol evidence to supply a description of the land intended. “Land, for instance, which is purported to be bargained for, must be so described that it may be identified.” Browne Stat. Frauds, section 385; Ridgway v. Ingram, 50 Ind. 145. Another author says: “Nor can parol evidence be received to supply anything which is wanting in the writing, to make it the written agreement on which the parties rely.” 3 Pars. Con. 13; Norris v. Blair, 39 Ind. 90.

A contract can not be partly verbal and partly written. If part rests in parol the entire contract is treated as a verbal

Board of Commissioners, etc., v. Shipley, 77 Ind. 553. If, therefore, part of the essential elements of a contract are evidenced by an oral agreement, the contract is within the statute, and can not be enforced.

It is not necessary that the description should be contained in one of a series of instruments; if, taking all the instruments in the series together, the description appears, it will be sufficient. In order that this should be so, the instrument containing the description must be clearly referred to and identified by the contract signed by the party sought to be charged. Wills v. Ross, 77 Ind. 1; Ridgway v. Ingram, supra. There is no identification of the deeds referred to in the contract under examination. The connection between the deeds and the contract can only be established by parol evidence, and where this is so the contract is within the statute. In Wills v. Ross, supra, the letter of the party sought to be charged clearly referred to and identified the letter exhibiting the subject matter of the contract.

It is a settled principle that the written instrument must contain all the essential terms of the contract. The reference in the instrument before us, to the contract which is to be

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