66 Ind. 488 | Ind. | 1879
This was a suit by the appellant, as plaintiff, against the appellees, as defendants, in a complaint of two paragraphs. As the only errors assigned by the appellant in this court call in question the sufficiency of the facts stated in each paragraph of the complaint to constitute a cause of action against the appelleés John W. Anderson, Euphemia Hamilton, William M. Hamilton, William A. Donnell and Jane Donnell, and each of them, upon their demurrers thereto for the want of sufficient facts, we find it necessary to a proper understanding of the questions considered and decided, that we should give a summary, at least, of the matters alleged in each paragraph.
And the appellant further averred, that on the 31st day of January, 1867, the said Joseph and Ann Speer, as before alleged, at the request of said Luther A. Donnell and John S. Anderson, executed to them a deed of said real estate; that said grantors (grantees ?), at that time and before, knew of said misdescription, and procured the making of said deed, for the purpose of defeating the lien intended to have been created on so much of said real estate as was situated in said section nine ; and that, since the execution of said deed to said Luther A. Donnell and John S. Anderson, both said grantees had died, the said Donnell leaving as his heirs the appellees William A. Donnell and Euphemia Hamilton, intermarried with Wm. M. Hamilton, and the said Anderson leaving the appellee John W. Anderson as his sole heir. Wherefore the appellant prayed that he might be subrogated to all the rights of said John S. Eoss, and that the decree and judgment in his favor might enure to the appellant’s benefit; that the said mistake might be corrected and that the said judgment and foreclosure might be reformed, to the end that the real estate first described, and which was intended to be covered by said mortgage to said Eoss, might be subjected to sale for the payment of the claim of said Eoss, so assigned to the appellant, and that all the appellees might be perpetually enjoined from all interference with said real estate, and that the title be granted to the appellant.
The allegations of the second paragraph are substantially the same as those of the first paragraph, of the complaint.
The question presented for our decision, in this case,
In the case of The First National Bank of Centreville v. Gough, 61 Ind. 147, it appeared that the appellee Charles T. Gough had been the owner of 94 acres of land in the south-east quarter of section 21, township 16 north, of rauge 12 east, which was known as the “Home Eanu;” that, being such owner, the said Gough and his wife had mortgaged the said land by an imperfect description, to the appellant, to secure a certain note; that, after the execution and record of said mortgage, the said Gough made an assignment of said real estate, with his other property, to certain named persons, for the benefit of his creditors; and that, after such assignment, the appellant had foreclosed its said mortgage, without having the same reformed and the mistake therein corrected, and -without making the assignees of said Gough parties defendants to the action. After such judgment of foreclosure, the appellant brought an action against the mortgagors and said assignees, to obtain a reformation of the mortgage and judgment, and the correction of the mistake therein, alleging in its complaint, that the misdescription of the mortgaged premises occurred through “the inadvertence and mistake of the parties, and of the scrivener who drew the mortgage.” On demurrer to this complaint, it was held by this court, that the alleged mistake was the result of negligence on the part of the mortgagee, and that, “ To entitle a party to relief * on the ground of mistake, in a case
It seems to us, that the-doctrine of the cases cited herein from our own Reports is decisive of all the questions in the case now before us, adversely to the appellant. The court committed no error, in our opinion, in sustaining the appellees’ demurrers to either paragraph of the appellant’s complaint.
The judgment is affirmed, at the appellant’s costs