Peelman v. Peelman and Others, 4 Ind. 612

Davison, J. Bill by the plaintiff against the defendants to compel a specific performance of a contract to convey land. The defendants are the heirs at law of Christopher Peelman, deceased. The contract sued on is a title-bond, executed by Christopher Peelman in his life-time to John Peelman, the plaintiff, whereby he, Christopher, bound himself in the penalty of 300 dollars to make a deed to the said John Peelman for forty acres of land (describing it) so soon as he, John, shall have made a deed to a certain other tract of land agreeably to a bond given to one John Turner, and lifted said bond.

This bond was signed by Christopher Peelman as security for the plaintiff. The bill alleges that the plaintiff made a deed to Turner's assignee and lifted'the bond given to him, and thereupon prays a specific performance against said heirs.

The defence set up by the answer denies the right of the plaintiff to a decree, upon the ground that there was no consideration for the agreement to convey; that Christopher Peelman's bond was an undertaking on his part to give John Peelman forty acres of land if he, John, would comply with his own contract previously made—an obligation which, in point of law, he was bound to perform.

The evidence shows that the plaintiff had made Turner's assignee a deed and lifted his bond; that Christopher Peelman, prior to the execution of his contract to convey the forty acres of land, had sold it to the plaintiff and received full payment therefor; that the plaintiff, under his purchase, had, in Christopher's life-time, occupied and used the land as his own, and still remains in possession „ ., OI it. D. Kelso, for the plaintiff. J. Sullivan, for the defendants. Upon a final hearing of the cause, the Court dismissed the bill. In our opinion, this decision was correct.

John Peel-man, prior to the execution of the contract sued on, hád obligated himself to make a deed to Turner. The performance of this obligation is set forth in the bill as the only consideration for Christopher Peelman's bond. This consideration was not sufficient to support the contract. The making of the deed to Turner's assignee could not, in contemplation of law, result in benefit to Christopher or injury to the plaintiff. In effect it was saving to John Peehnan, do what the laiT"binds you to perform, and I, Christopher, will give you forty acres of land.

The promise to convey to John was obviouslw-axatuitous. But the evidence shows that the plaintiff paid for the land, and occupied it under a purchase from the obligor of the title-bond. Hence it is contended that the plaintiff is entitled to a deed. This argument does not meet the case before us. The instrument sued on shows the consideration of the undertaking. The bill does not profess to set up any other. The plaintiff cannot recover on ground not taken in his bill. It was, therefore, not competent for him to show a consideration varying from the one alleged. Per Curiam. The decree is affirmed with costs.