Allen and Others v. Davison.
Where instructions given by the Court are signed by the judge, and filed, they become a part of the record without being incorporated in a bill of exceptions.
A party, where there is to be a general verdict, has a right to have a response to particular questions of fact, the same being pertinent and involved in the issues; but the Court may control the form of the questions, and the manner of propounding them, and need not require them to be answered in the form prepared by counsel.
A specific performance of an agreement for the conveyance of real estate, can only be enforced where the agreement has been executed upon a valuable consideration; a good consideration, merely, is not sufficient.
In the year 1832, A. had born to him an illegitimate son, whom he recognized as such, and named B. The maternal grandfather of B. threatened a legal prosecution against A., and to settle the matter, A. gave to the mother $200, and entered into an agreement in writing, with the grandfather, by which the latter was to keep the child until he became fourteen years of age, his mother consenting and giving up all claim to the child, and A. was, at a future time, to convey a certain tract of land to the said bastard, B.
Held, that under the provisions of the statute then in force, A. was liable to be charged with the maintenance of the child, in a prosecution by the mother, or, upon her default, by the overseers of the poor, and was further liable to a suit by the mother for damages.
Held, also, that the amount paid to the mother did not in any way affect A.'s liability to be sued for the maintenance of the child, and such liability furnished an ample valuable consideration to support his agreement to convey the land.
Held, also, that the suit was well brought in the name of B., the contract May Term,
having been made for his benefit.
Held, also, that a suit for specific performance is not within the statute providing for new trials without cause, in certain cases.
APPEAL from the Carroll Circuit Court.
Worden,J.—This was an action by John Davison, the appellee, against the appellants, who are heirs at law of John J. Davison, deceased, to enforce the specific performance of a contract for the conveyance of certain real estate. Verdict and judgment for the plaintiff.
The facts are, in substance, as follows: John Davison is the illegitimate child of John J. Davison, deceased. He was begotten and born in Tippecanoe county, in this State. He was born in the year 1832, his mother, Sarah Phillips, being then about eighteen years old, and residing with her father, Simon Phillips.
After the plaintiff's birth, he was named by his natural father, and recognized by him as his child. Simon Phillips, the father of the plaintiff's mother, threatened to institute legal proceedings against John J. Davison, in consequence of the begetting and birth of the plaintiff. In March 1833, the parties met, and to settle all controversy in the premises, Davison gave to the plaintiff's mother $200 in money, and also a mare; he also entered into an agreement with Simon Phillips, by which the latter was to keep the plaintiff until he should be fourteen years old, his mother consenting thereto, and agreeing, on her part. to give up all claim to the child until that time. Phillips was then a tenant of Davison on the land in controversy, and was to apply a portion of the rents and profits to the support of the child. Davison was to convey the land to the plaintiff at a future time. This agreement was reduced to writing, and signed by Davison, and delivered to said Simon Phillips. It has since become lost, but it may be gathered from the evidence that it contained the above stipulations. This suit was brought to enforce the conveyance thus stipulated for.
We will notice the points relied upon in the briefs of counsel for the appellants, to reverse the judgment. On the trial, the Court permitted evidence to be given to the jury, over the objection of the defendants, showing the amount of property left by John J. Davison at his decease, viz., $34,000.
The plaintiff read in evidence the deposition of Sarah Burke, formerly Sarah Phillips, his mother. Afterward, and without any impeachment of the capacity or credibility of said witness, he proved by another witness, the defendants objecting, that said Sarah had been a school teacher, and was, as the witness thought, a very intelligent woman. The admis-
sion of this testimony was perhaps irregular, but we regard the irregularity as by no means sufficient to justify a reversal of the judgment. That the witness whose deposition had
been read had been a school teacher, was perhaps properly proven. This question might have been asked of herself. Nothing is more common than to inquire the age, residence, and occupation of witnesses; and we see no impropriety in such evidence. The statement of the witness, that he regarded Mrs. Burke as a very intelligent woman, could not have materially affected the rights of the defendants, and the error, if error was committed, was harmless.
Per Curiam.—The judgment below is affirmed, with costs.
Source: Reports of Cases Argued and Determined in the Supreme Court of Judicature of the State of Indiana, Volume XVI, at the May Term, 1861; Pgs. 417-421
