Blemaster v. Rockey

<p>Abstract of the Decision.</p> <p>1. Estoppel, § 33*—when giving of deed as mortgage does not estop grantor to claim that later deed not mortgage. The fact that the owner of property gives one deed as a mortgage to cover indebtedness does not estop him from claiming that another deed reciting that the grantee assumes and promises to pay other mortgage incumbrances was not intended as a mortgage.</p> <p>2. Mortgages, § 38*—when evidence sufficient to establish absolute conveyance and not mortgage of real property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed from plaintiff to defendant under an alleged oral agreement not performed by defendant, evidence held sufficient to sustain a finding that the deed was intended as an absolute conveyance of the property as claimed by plaintiff, and not as a mortgage, as contended by defendant.</p> <p>3. Damages, § 66*—what is measure of for breach of oral contract to convey property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed to defendant by plaintiff under an alleged oral agreement by which plaintiff was to convey such property, subject to the mortgages thereon, to defendant and pay a certain sum of money equivalent to three notes against plaintiff which had been held by defendant, but had been transferred to another person, in consideration of the cancellation of such notes and the conveyance of other property, an instruction that if the jury found that the agreement was as stated and defendant refused to perform the contract they should find for the plaintiff and assess his damages at such sum as they believed, from a preponderance of the evidence, the fair market value of plaintiff’s interest in such property exceeded the incumbrance thereon, approved.</p> <p>4. Courts, 138*—when cause not transferred to equity side of court. A vendee sued at law for the purchase price of real estate cannot transfer the action to the equity side of the court by pleading and attempting to prove that the deed was given as a mortgage unless he succeeds in establishing the truth of his statements.</p> <p>5. Assumpsit, action of, § 6*—when lies to recover value of property conveyed under oral agreement. Where land is conveyed to another under an alleged oral agreement by which the vendor is to convey such property, subject to incumbrances, to the vendee and to pay a certain sum equivalent to outstanding notes of vendor’s in favor of vendee, in consideration of the cancellation of such notes and the conveyance of other property, the refusal of vendee to convey such other property constitutes a termination of the express contract and authorizes an action in assumpsit to recover on an implied agreement.</p> <p>6. Assumpsit, action of, § 89*—when evidence sufficient to sustain verdict as to value of property. In an action of assumpsit to recover the market value of residence property conveyed to defendant under an oral contract, which was breached by defendant, evidence held sufficient to sustain the verdict as to the value of such property.</p> <p>7. Appeal and erbob, § 1447*—when error in refusing leave to file special pleas and in sustaining demurrers to special pleas harmless. Any error in an action of assumpsit in refusing defendant leave to file special pleas and in sustaining demurrers to special pleas is harmless where defendant is not deprived in the introduction of evidence, or in the instructions to the jury, of any legal right to which he is entitled under the facts.</p>