Hamilton et al. v. Plaut et al.

about to act on the motion to close the rule, did not offer nor ask leave to file it, but simply notified the court of the previous effort at filing, and asked the court to grant him a change, but took no exception to the disregard of his request.

Whether, if the appellant had asked leave to file the affidavit and to interpose his motion for a change, the court would have been compelled to suspend its decision on another motion already under consideration, and give precedence to the motion for a change from the judge, we need not consider.

The appellant moved for a new trial as a matter of right, alleging, in his motion, that he had paid all costs; but the record contains no statement or evidence that he had in fact paid the costs. There is, therefore, no question before us in respect to this motion.

Error is assigned upon the appointment of an attorney to try the cause, but no exception was saved to the appointment. Judgment affirmed, with costs.

No. 8615.

HAMILTON ET AL. v. PLAUT ET AL.

SPECIFIC PERFORMANCE.-Title Bond.-Contract.- Mistake.-Statute of Limitations.- Vendor and Purchaser.—Suit to compel a conveyance according to the conditions of a title bond. Cross complaint averring that the purchase-money was unpaid, alleging that a recital in the bond of payment was a mistake, and that the purchaser and her assignee were in possession, praying for a correction of the mistake, that an account be taken of the purchase-money due, and on payment that a conveyance be made by a commissioner, and for general relief. Answer to the cross complaint, the statute of limitations.

Held, that the cross complaint was good on demurrer, and the answer bad. Held, also, that plaintiff, by suing for specific performance, waived the statute. SAME.-Estoppel.-The recital of payment in a title bond for a deed for the purchase of real estate does not estop the obligor from averring, in a suit for a deed, the non-payment of the purchase-money.

From the Cass Circuit Court.

VOL. 81.-27

Hamilton et al. v. Plaut et al.

W. T. Wilson, G. C. Taber and N. O. Ross, for appellants. D. P. Baldwin, for appellees.

MORRIS, C.-The appellees, on the 22d day of August, 1873, brought this suit against the appellants to enforce the performance of a contract for the sale of a lot in Taber's addition to the city of Logansport, making the heirs of Henry Bliss, by his first marriage, defendants below, for the reason that they refused to join with them as plaintiffs, alleging them to be the owners of something less than a third of said lot.

The complaint states that on the 14th day of March, 1854, Allen Hamilton and Cyrus Taber, being then in life, and the owners of the lot in controversy, executed a title bond, a copy of which is filed with the complaint, agreeing to convey to Martha Bliss, the ancestor of the appellees, said lot for the sum of $500; that the said Martha took immediate possession of said lot, and remained seized of the same until her death, in the year 1871; that she left surviving her, her husband, Henry Bliss, and two children, of whom the appellee Martha Plaut was one; that the other, Mira Brown, died, leaving as her only heirs, the appellees Mira Brown and Henry Brown; that the said Henry Bliss subsequently married, and died in 1873, leaving his wife, Martha Bliss, one of the defendants below, surviving him; that Martha Bliss, to whom said bond was executed, was the second wife of said Henry Bliss; that he left by his first wife, surviving him, his daughters Sarah, who intermarried with James M. Mason, Mary J., intermarried with George Train, Louisa, intermarried with Daniel Griswold, Maria, intermarried with Samuel H. Tam, and his sons, George R. Bliss and John Bliss, the latter of whom afterwards died, leaving William C. Bliss, Mary Bliss, intermarried with Riley Craig, Felix Bliss, George R. Bliss and Edgar Bliss, as his children and heirs, and Lucretia Bliss, his widow, surviving him, all of whom, together with Martha Bliss, the third wife of said Henry Bliss, are made defendants; that said Martha Bliss, to whom said bond was given, paid,

Hamilton et al. v. Plaut et al.

as the appellees are informed, the $500 to the said Hamilton. and Taber; but offering, in case such payment had not been made, to pay the same, with the interest accrued thereon; that said James M. Mason is now in possession of said lot, and excludes the appellees therefrom; that he has, wrongfully and without right, possession of said title bond, and refuses to deliver it to the appellees, or to recognize their rights in said lot; that the appellees own 26-36 of said lot; that said Mason owns 1-36 part of said lot; that Lucretia Bliss owns 4-36 of said lot, and that each of the other defendants, heirs of said Henry Bliss by his first wife, own 1-36 part of said lot. The heirs of Cyrus Taber and Allen Hamilton are made parties, and it is alleged that they refuse to convey said lot to the parties equitably owning the same; that there is a hotel on said lot, and that said Mason is receiving the entire rents and income of the same.

The prayer is that the heirs of Taber and Hamilton be required to perform the said contract and make a title, according to the facts stated, to the plaintiffs for 26-36 parts thereof; that, if there is any unpaid purchase-money, the court should ascertain the same and direct how it should be paid; that Mason be compelled to deliver up the title bond; that a receiver be appointed to take possession of the lot and receive the rents of the same; that the title of the appellees be quieted, and for general relief.

The title bond is as follows: "Know ye, that we, Allen Hamilton and Cyrus Taber, of the counties of Allen and Cass, in the State of Indiana, are firmly held and bound unto Martha Bliss, of the county of Cass and State of Indiana, in the penal sum of $1,000, for the payment of which we hereby bind ourselves, our heirs and personal representatives, firmly by these presents, sealed with our seals and dated this 1st day of March, 1854.

"The condition of the above bond is such that, whereas the above bound Hamilton and Taber have this day sold unto the said Martha Bliss lot 20, as designated on the original

Hamilton et al. v. Plaut et al.

plat of the town of Taberville, in said county of Cass, and recorded in the recorder's office thereof, for the price and sum of $500, the receipt whereof is hereby acknowledged, upon the condition that said Martha Bliss pay all the taxes and assessments levied on said lot for the present and ensuing years: Now, therefore, should the said Hamilton and Taber, on or before the first day of March, 1856, execute to the said Martha Bliss a sufficient warranty deed in fee simple for said lot, then this bond should be void; else, in full force.

"ALLEN HAMILTON, [Seal.] "CYRUS TABER, [Seal.]

"By STEPHEN TABER."

To this complaint, the heirs of Hamilton and Taber appeared and filed an answer in three paragraphs, the first being a general denial. The second alleged a want of consideration. The third states that the purchase-money for the lot in controversy had not been paid; that the $500, with interest thereon from the 1st day of March, 1854, is due; that, upon its payment, the legal holders of the bond would be entitled to a deed for the lot; that some of the heirs appellants are minors, but that, upon payment of the purchase-money, they are willing that the court should cause the lot to be conveyed to the legal holders of the bond.

Said heirs also filed a cross complaint against their co-defendants and the plaintiffs below, alleging that, prior to the 1st day of March, 1854, Allen Hamilton and Cyrus Taber, their ancestors, made a verbal contract for the sale of the lot in controversy, to said Henry Bliss, then in life, for the sum of $500, thereafter to be paid, under which parol contract he took possession of said lot; that on the 1st day of March, 1854, at the instance of said Henry Bliss, they made said title bond, a copy of which is filed with the cross complaint; that the same was made without any consideration moving from Martha Bliss to them, but solely in consideration of the promise of said Henry Bliss to pay for said lot; that, through the mistake of the scrivener, who drew said bond, the words, "the

Hamilton et al. v. Plaut et al.

receipt whereof is hereby acknowledged," were inserted therein; that said $500 were not paid, nor had any part of it ever been paid, but that the whole of said sum was then unpaid; that said mistake was not discovered until after the death of said Taber and Hamilton; that no part of said $500 was ever paid by said Henry Bliss or Martha Bliss to the said Hamilton and Taber, or to either of them, during their lifetime, nor has the same or any part thereof been paid to the legal representatives of said Hamilton and Taber, or to the legal representatives of either of them, nor to the cross complainants or any of them; that the said Martha Bliss, to whom said bond was made, died intestate, on the 22d day of February, 1871, and that the persons made parties to the cross complaint are her heirs; that the cross complainants had heard that said Martha Bliss, in her lifetime, sold and assigned said bond to their co-defendant, James M. Mason, and that he is the legal holder of the same; that there is due to the cross complainants the sum of $500 and interest thereon from the 1st day of March, 1854. The death of Allen Hamilton and Cyrus Taber, and the minority of some of the heirs are alleged.

The cross complaint prays that the bond may be reformed, by striking therefrom the words " the receipt whereof is hereby acknowledged;" that an account may be taken of the amount due them for said lot, and that, when paid, the lot should be conveyed, through a commissioner to be appointed by the court, to the parties entitled to the same, or that the court order a conveyance to be made to the proper parties, and that the cross complainants be declared to have a lien on said land for said purchase-money, and that the same be sold to pay said lien, and for all other proper relief.

James M. Mason, one of the defendants to the cross complaint of the heirs of Hamilton and Taber, answered the cross complaint in seven paragraphs: 1st. The general denial. 2d. That the purchase-money for said lot had been fully paid. 3d. That the claim is without consideration. 4th. That the cause of action alleged in said cross complaint did not accrue