This is an appeal from a judgment for the appellees Albert M. Molson, Jr. and Dorothy Molson, his wife, entered upon four interrogatories answered by the jury, notwithstanding a general verdict for the appellants. The only issue now is did the trial court err in entering such judgment. In order to simplify the factual situation the appellants will be referred to hereafter as the plaintiffs and the appellees as defendants.
The plaintiffs filed a complaint in two paragraphs, the first seeking to quiet an equitable title to 540 acres of real estate in Newton County, and the second seeking specific performance of an oral contract with the defendant Daniel Degymas to convey the same land. There was no personal service of process upon Daniel
The record has no bill of exceptions containing the evidence, and if it did we would not be at liberty to consider it, since the rule is well settled, "This court will consider only the pleading, general verdict and interrogatories and answers, in determining whether a judgment should have been entered on the answers to interrogatories. City of Jeffersonville v. Grey (1905), 165 Ind. 26, 74 N.E. 611; Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 66 N.E. 156." Talbot v. Meyer (1915), 183 Ind. 585, 588, 109 N.E. 841. See also L.S. Ayres & Co. v. Hicks (1942), 220 Ind. 86, 92, 41 N.E.2d 195, 356.
The complaint in substance alleged that on the 15th day of January, 1953, the defendant Daniel Degymas was in possession of the land in controversy under a contract of sale with the defendant Helen Cunningham and that Degymas made an oral agreement to convey his interest in the real estate to the plaintiffs, Denhams,
The complaint further charged that in order to secure a loan from the Production Credit Corporation, and at the suggestion of Daniel Degymas, plaintiffs did execute a written lease with Daniel Degymas on February 9, 1953, which was not for the purpose of setting forth the true agreements of the parties but only to obtain the loan of $6,000 used for the down payment; that thereafter on March 30, 1953, plaintiffs executed a release of the option therein contained to renew the lease on the representation that the Production Credit Corporation required it, but that no consideration was received for such release.
That, "Although plaintiffs frequently demanded delivery of a contract conveying said interest, Daniel Degymas failed and refused, and has to the date of this action failed and refused, to deliver such a conveyance." However, the complaint fails to allege the plaintiffs ever offered to pay the balance due on said alleged oral contract, or a tender to do so kept good by depositing the tender with the court.
The complaint then charged that the plaintiffs learned defendants Albert and Dorothy Molson were negotiating for a sale of the land with Daniel Degymas, that they informed the Molsons they were in possession as purchasers and Degymas had nothing to convey, but that the Molsons entered into an agreement for the purchase of the interest of Degymas, and that the Molsons
The prayer of the complaint is as follows:
The defendants, Albert Molson and Dorothy Molson, filed an answer in two paragraphs, the first being in denial, and the second in substance alleging that on the 27th day of October, 1951, Helen M. Boyle was the owner of the lands and on this date she sold the same by written contract to Daniel J. Degymas, who in turn assigned his interest in such contract to purchase to the defendants, Albert W. Molson, Jr. and Dorothy Molson, his wife, and that at all times since the 23rd day of April, 1953, the date of the assignment, said defendants Molson "were the equitable owners of the real estate involved in this controversy."
Exhibit A to the complaint was a copy of the Farm Lease, with the endorsement thereon of the release of the option to renew signed by William Denham and Pearl Denham. Exhibit A to the answer was the contract of purchase between Helen M. Boyle and Daniel J. Degymas, and Exhibit B was the written assignment of the purchaser's interest to the defendants Albert W. Molson, Jr. and Dorothy Molson.
The interrogatories submitted to the jury and the answers thereto are as follows:
The entry of the judgment for defendants is in the footnote.
As far as the record on appeal shows, the complaint was not questioned by motion or by demurrer. There is no record showing any pleading was ever amended after it was filed.
Since there was no objection taken to the sufficiency
The briefs of appellants and appellees agree that a contract to sell an interest in real estate conveys to the purchaser an equitable title. See Knapp v. Ellyson Realty Co., Inc. (1937), 211 Ind. 180, 5 N.E.2d 973. The appellees contend that interrogatory No. 4 and the answer thereto found that the Molsons were bona fide purchasers of whatever interest in the real estate Degymas had to convey. Had the Molsons purchased the legal title there would be more merit to the contention, but even then the interrogatory said nothing about "value."
In our opinion the decision by this court in Gallion v. M'Caslin (1820), 1 Blackf. 91, 12 Am. Dec. 208, fully disposes of the claim that the Molsons should be protected as bona fide purchasers.
The court held the contract and bond to convey title conveyed equitable title, and said: "Take it for granted that the defendant had fairly obtained an equitable title without any knowledge of the complainant's equity: at that time the parties stood upon equal ground as to the nature of their claims; and the right of the complainant, being the eldest, was entitled to the preference. But is contended that the defendant went on and procured the legal title, and thus obtained an advantage which ought not to be taken from him. It is true the purchase money was afterwards paid, and the title perfected; and had this been done before notice of M'Caslin's claim, the defendant would have been perfectly safe. But the fact is otherwise. Gallion had nothing but an equitable lien before notice.... But, in the present case, M'Caslin had the prior equitable right to the legal title from Clark; and, after Gallion had notice of it, his endeavor to obtain that title, and thus divest M'Caslin of his claim, was unjustifiable. The defendant knowingly attempted to destroy the complainant's prior and therefore superior equitable right, by strengthening the younger and inferior one of his own, by procuring the legal title from Clark, to which the complainant was best entitled. In such proceedings, the defendant cannot be protected in a Court of equity. We must put out of view everything done by him after notice. Before that time each of the parties had an equitable claim, and neither of them had anything more. In that situation of their controversy there is but one way to determine between them.
Under the rule of Gallion v. M'Caslin (1820), 1 Blackf. 91, supra, a second bona fide purchaser of an equitable interest to convey real estate is not protected against the equitable interest of the first purchaser. Therefore, it was error to enter judgment on the interrogatories, since interrogatory No. 4 and the answer thereto did not establish a superior equitable interest in the defendants Molsons. But it does not necessarily follow that our mandate on reversal should order the trial court to enter judgment for the plaintiffs on the general verdict.
We are well aware that our courts have said upon occasion that on appeal the complaint may be considered amended to conform to the evidence. Rushville Natl. Bk., Tr. v. State Life Ins. Co. (1936), 210 Ind. 492, 1 N.E.2d 445; Boston v. Chesapeake & O. Ry. Co. (1945), 223 Ind. 425, 61 N.E.2d 326. It is to be noted that there is no statute in our code, nor is there any rule of court which authorizes this. It is a fiction sometimes useful to accomplish substantial justice, but it is still a fiction and should not be employed where it may result in injustice or accomplish a variance.
The plaintiff in an action to quiet title must recover if at all upon the strength of his own title and not upon the lack of title in the defendant. Kerfoot v. Kessener (1949), 227 Ind. 58, 75, 84 N.E.2d 190; McPheeters v. Wright (1887), 110 Ind. 519, 521, 10 N.E. 634; Ragsdale v. Mitchell (1884), 97 Ind. 458, 461.
The parol evidence rule is not a rule of evidence but it is a rule of substantive law. 9 Wigmore, Evidence (3rd Ed.) § 2400; 3 Williston, Contracts (Rev. Ed.), § 631, p. 1813; Restatement, Contracts, § 237, pp. 331, 332.
With a record like this, we would be risking a gross miscarriage of justice to order the trial court to enter a judgment on the general verdict. The justice of the cause requires a new trial be ordered. Section 2-3234, Burns' 1946 Replacement.
Judgment reversed and new trial ordered.
Bobbitt, Landis and Arterburn, JJ., concur.
Achor, J., concurs in result.
NOTE. — Reported in 147 N.E.2d 214.
The rule is, "`that special findings of a jury control the general verdict only where irreconcilable therewith, and the antagonism must appear on the face of the record beyond the possibility of removal by any evidence legitimately admissible under the issues.' American Car, etc., Co. v. Vance, supra. See, also, Indianapolis St. R. Co. v. Hockett (1903), 161 Ind. 196, 67 N.E. 106; Chicago, etc., R. Co. v. Leachman (1903), 161 Ind. 512, 69 N.E. 253." American Car, etc., Co. v. Adams (1912), 178 Ind. 607, 614, 99 N.E. 993.
a. This section states what is known as the parol evidence rule. The rule, however, is not one of evidence but of substantive law. Nor is it a rule of interpretation. It defines the subject-matter to be interpreted. Though the prior and contemporaneous agreements made inoperative by integration of a contract in writing are generally oral, this is not necessarily the case as to prior agreements. A prior written agreement is superseded by a later integration. Where writings relating to the same subject-matter are contemporaneous, both form part of the integration." Restatement, Contracts § 237, p. 331, 332.