— Hannah M. Andis and others, the minor children and heirs at law of John and Miza, A. Andis, deceased, by Samuel Martin, their next friend, filed a complaint against Addison D. Williams and Andrexo Jackson, to compel the specific performance of a written contract for the conveyance of certain real estate.
The facts stated in the complaint, in substance, are these: On the 10th of December, 1860, said Williams, and John and Miza A. Andis entered into a contract in writing, by which Andis and wife sold, and agreed to convey to Williams, on or before the 4th of July, 1861, lot number 25, in the southwest square of the town of Anderson, Indiana, of which the said Miza A. was seized in her own right. In consideration of which Williams sold, and agreed to convey to Andis and wife, on or before the 4th of July, 1861, lot number 7, in Jackson’s second addition of out-lots to the said town of Anderson, with an unfinished house thereon, and certain building materials designed for the same, and also to transfer an agreement made by Williams with one Tillson, by which the latter was to do the carpenter work on said house, amounting to the sum of $350, for which Williams was to convey to him lot number 15, in Jackson’s second addition to the town of Anderson. It was further agreed, that in the event that Tillson failed to do said carpenter work, then Williams should convey said lot 15 to said *335John and Eliza A. Anclis; tliat Tillson did fail to perform the carpenter work on said house, or any part thereof, and it ivas subsequently done by said Anclis, whereby said John and Eliza A. became entitled to a conveyance for said lot 15; that each of the parties to said written contract took possession under the same, of the premises therein described, to ho conveyed to them respectively; that said John and Eliza A. Anclis, on the 2d day of July, 1861, signed, sealed and acknowledged a proper deed for said lot number 25, in all respects in accordance with their contract, except that at the request of said Williams, it contained the name of his wife, Virginia Y. Williams, as the grantee therein, which they tendered to said defendant Williams, on the 4th day of July, 1861, and demanded that he should convey to them'said lots numbered 7 and 15, which lie then, and ever since, failed and refused to do. ^The deed from Anclis and wife to Williams’ wife was brought into court.
It is further alleged in the complaint, that Williams had no legal title to said lots 7 and 15, either at the date of the contract or the commencement of the suit; that he held the same under a contract of purchase from the defendant Jackson, who still held the legal title thereto, the conditions of which were unknown to the plaintiffs; but it is charged that a large sum, to-wit, §300, of the purchase money therefor remained due to Jackson from Williams, and that Jackson refused to convey the lots until said purchase money was paid; that John Anclis died in August, 1862, and Eliza A. Anclis died in September, 1862, leaving the plaintiffs their only children and heirs at law. Prayer, that an account be taken of the amount remaining duo to Jackson on the purchase money of lots 7 and 15, and that Williams be decreed to pay the same, and, upon such payment, that Jackson be required to convey said lots to the plaintiffs; and that a commissioner be appointed to convey, for and on behalf of the plaintiffs, said lot number 25 to said Williams; or, if said Williams should fail to pay the purchase money re*336maiuing clue to Jackson on said lots number 7 and 15, and by reason thereof said lots are sold for the payment thereof, that a rescission of the contract between said Williams and John and Eliza A. Anclis be decreed, and the plaintiffs restored to the possession of said lot number 25, and for general relief.
Jackson answered the complaint, alleging that ho sold said lots 7 and 15, the proper description of which is, “ out-lots numbered 7 and 15, south of The Cincinnati and Chicago Railroad, as laid out by Andrew Jackson, July 10th, 1859,” to one Alfred Ealy, and executed to him a bond, conditioned for a conveyance upon the payment of the purchase money, for which said Ealy executed his notes, payable without relief from valuation or appraisement laws; that he did not know who then held the bond, but he avers that there still re- • mained due, to him, as a part of said purchase money, in-. eluding interest to the date of the answer, the sum of §324: that said Ealy is wholly insolvent, and that he, Jackson, had always been, and then was, ready to convey said lots to -the proper person, upon the payment of said purchase money; and by way of cross-complaint, prays that the equitable interest of the other parties to the suit in said lots be sold to pay said sum of §324, and for other proper relief.
Williams answered in two paragraphs:
1. A general denial of the allegations of the complaint.
2. In the nature of a cross-complaint, by which ho admits the execution of the contract between him and John and Eliza A. Andis, referred to in the complaint, and that he thereby sold and agreed to convey said lots 7 and 15 to said Eliza A., as alleged; and alleges that said Jackson had theretofore sold said lots to Ealy, and put him in possession thereof; that Ealy retained said possession until the 10th of September, 1860, when he sold the same to the defendant Williams, and assigned to him the bond of said Jackson therefor, and delivered to him, Williams, possession of said lots; that when ho executed the contract referred to in the complaint, he, Williams, surrendered the possession of said lots to Eliza *337A. Andis, who continued to hold the same at the time of her death, and had made improvements thereon, and that the plaintiffs, as her heirs, still continue in possession thereof ; that at the time of the sale to Eliza A. Andis, there was duo and owing from said Ealy to Jackson, on the purchase money for said lots, the sum of $90, and no more, the residue thereof having been paid by said Ealy; that on or about the 10th of September, 1860, an arrangement was made between Jackson and the defendant Williams, by which the latter took up the note of said Ealy for $90, and executed to Jackson his own note in lieu thereof, for the same sum; that said sum of $90, with interest thereon to the date of said answer, amounting in the aggregate to the sum of $104, was all that then remained duo to Jackson for said lots; which sum he brought into court for said Jackson, and thereupon prayed that on the final hearing the court would decree that Jackson should convey said lots to the plaintiffs, and that a commissioner should be appointed to convey said lot number 25 to said Williams.
Jackson replied, denying the allegations of the answer of' Williams, so far as they were inconsistent with his answer.
The plaintiffs replied in denial of the answers and cross-complaints of both defendants.
By agreement of the parties, the issues were submitted to the court for trial, without a jury. The court found, as-between the defendants Jackson and Williams, that there was due to Jackson the sum of $482 32, on the purchase money of said lots 7 and 15. Williams moved the court for a new trial, on the ground that the finding of the court was contrary to law and the evidence in the case. But the court overruled the motion, and thereupon rendered a final decree, declaring said sum of $482 32 a lien, in favor of Jackson, on said out-lots 7 and 15; and, in default of the payment thereof, together with interest and costs, that said lots be sold, on a certified copy of said decree, for the payment of said sum, interest and costs, without appraisement,. *338and continued the cause as between the plaintiffs and' the defendant Williams. • To all of which Williams excepted, and appeals to this court.
After the judgment was rendered, Jackson’s attorney remitted, on the record, $188 42 thereof.
The evidence, which is before us, does not sustain the answer of Jackson; nor does it sustain the finding of the court. Jackson testified, in his own behalf, that he sold said lots 7 and 15 to Alfred Ealy, and gave him a title bond .therefor. A copy of the bond is set out. It is in the penal sum of $405, and is dated July 4th, 1859. The condition recites the sale of the lots to Ealy, one for $280, ánd the other for $125, and then proceeds as follows: “ Payments to be made as per promissory notes, bearing six per cent., due in equal annual installments, with interest from the date hereof. All taxes to be paid by said Ealy after 1858, to-wit, the present year’s taxes, and all hereafter. Deed in fee to be made on final payment.”
Jackson further testified that Ealy gave him in payment for said lots two notes on R. A. Bartlett for $133 07 each, .secured by a mortgage, one due April, 1860, and the other in December of the same year, both bearing interest, but that they were taken at $266 14; that Ealy also gave him his own note, due July 4th, 1862, for $177 40; that he after-wards sold Ealy a strip of ground between a street and the lots as then described, for $15, which was not paid; that Ealy subsequently sold a part of the ground to one Burk,. and- gave him Burk’s note for $98 50, which he collected and applied on Ealy’s note; that Ealy then sold the lots in controversy to the defendant Williams, and left a note signed by Williams, at Nichols <f* King’s, for a little less than $100, to be exchanged with him, Jackson, for Ealy’s note held by him; that he made the exchange, and afterwai’ds received the money on Williams’ note, amounting to $110, including interest; that when the notes on Bartlett became ■due he foreclosed the mortgage, had the property sold, and bought it in at $100, paid the costs, $16 35, and credited *339the residue on the judgment. He admits that the $15 due from jEaly for the strip of ground between the lots, as sold, and the street, was included in the note given him by Williams. The note given by Williams was then shown to Jackson, and he admitted that it was in his own hand writing. He further testified that Bartlett never paid him anything on his notes.
Williams, the appellant, testified that he and Ealy agreed upon the terms of the purchase of the lots; that he was to pay Ealy therefor the sum of $700, out of which he was to pay Jackson what Ealy owed him on the purchase money, which Ealy represented to be $75; that before he closed the trade with Ealy, he called on Jackson aiid told him he was about to trade for the lots, and wished to know of him how much was still due from Ealy for the purchase money, telling him at the same time that Ealy claimed that it was only $75, and that he, Williams, if he made the purchase,, was to pay it, and had promised Ealy that he would take up his note and give his own to Jackson in its stead; that he further told Jaclcson that Ealy represented that the .$75 was all the incumbrance there was on the property; that he did not wish to trade blindly, and had therefore called on him to know what was the true amount he held against the property; that Jackson replied that he could not then tell the exact amount, but that it was not much, and that he would look it up and give him, Williams,'the amount; that soon after this conversation with Jackson, Ealy came to him with a note in the hand writing of Jackson, and payable to him, for the sum of $92 88, to bé signed by him, Williams ; that Ealy gave as a reason why the note was for more than $75, that Jaclcson had included in it $15 for the small strip of ground; that Ealy arranged that with him, Williams, in another way, and they concluded the trade, and Ealy assigned him Jaclcsoris bond. He further testified that he knew nothing of the Bartlett notes, and that Jackson did not intimate to him that he claimed any other lien on the property except the balance due on Ealy’s note, for *340which, he subsequently executed his own note to Jackson; that Baly was irresponsible, and he would not have made the trade with him had he known that Jackson claimed any other lien on the lots.
Jackson, in rebutting, testified that he took the Bartlett notes “ as he took the other «notes — not as cash, but simply as a cash note — not as a payment in cash on the land, but only in place of Baly’s notes.” But he did not deny the conversation with Williams, as testified to by the latter, nor offer any explanation thereof.
From the conversation between Jackson and Williams, testified to by the latter, Williams was clearly justified in the conclusion, when Baly presented him the note drawn by Jackson for $92 88, that that amount was all that remained due to Jackson on the purchase money. Williams had told Jackson that he was about to trade for the property, and if he did so, that he would become responsible to him for the unpaid purchase money, and hence he wished to know what amount Jackson held against the property; telling him, at the same time, that he was informed by Baly that the amount was only $75. Jackson replied that it was not much, but he would look up the amount and inform Williams thereof, and subsequently sent him the note for $92 88, which he admits included the $15 for the small strip of ground. Under these circumstances, Williams could only understand that the note covered all the liens Jackson claimed on the property; and, if he can now set up a lien for the balance due on the Bartlett judgment, it will enable him to perpetrate a direct fraud on Williams. This, the law will not permit. If he intended to assert such a claim, he should have done so when Williams called on him to know what claims he held against the property, or at least before he took WiUiams’ note,- and thereby induced him to purchase the lots of Baly, and having been silent then, he is estopped from asserting the claim now, when to do so would be a fraud on Williams. This is too familiar a principle of law to need the citation of authorities to support it.
H. Craven and A. D. Williams, for appellant. J. Davis, for appellees.The judgment is reversed, with costs, and the cause remanded for further proceedings in conformity with this opinion.