54 Ind. 482 | Ind. | 1876
The appellee sued the appellant in the court below. The complaint alleges that the appellee, being desirous of purchasing a certain lot or parcel of ground in the city of Indianapolis of one Henry Rock, and before completing the purchase, employed the appellant to examine the title to said lot, to the end that it might be known whether said Rock was the owner thereof, and what incumbrances or liens appeared of record against the same, agreeing to pay for such services the sum of five dollars, which was afterwards paid. That the appellant accepted said employment, and afterwards, to wit, on the 21st day of January, A. D. 1871, made and delivered to the appellee his report in writing, purporting to give the condition of said lot with reference to title and incumbrances from January 28th, A. D. 1868, to the time of making such report. That in his said report, or abstract of title, the appellant referred to a mortgage made by said Rock, on said lot, to the trustees of a certain benevolent society, on the 29th day of January, A. D.
The appellant answered that at the time of his making the examination of the title of the lands and preparing the abstract, as alleged in the complaint, he was deputy-recorder of Marion county; that he was not engaged in making examinations and preparing abstracts of title of lands; that he did not profess to be able to make such examinations or prepare such abstracts, nor did he so hold himself out to the world; that the appellee applied to him to perform services for him in making a partial examination of the title to certain lands in Marion county and to prepare a partial abstract thereof, being the same lands and the same abstract mentioned and described in the complaint; that, upon such application, the appellant informed the appellee that he made no pretensions to skill in the business of preparing abstracts or making examinations as to titles, and advised him to engage some one regularly engaged in the business; that the appellee represented he only wanted a partial examination made, and was willing
The appellee demurred to the appellant’s answer, and the demurrer was sustained, to which the appellant excepted.
The appellant refusing to answer over, damages were assessed against him in the sum of four hundred and fifteen dollars and fifty-two cents, and judgment rendered accordingly.
The defendant then appealed to the general term of the superior court of Marion county, and assigned for error,—
Eirst-. The sustaining of' the demurrer to his answer;
Second. The rendition of the judgment against him.
The judgment was affirmed in general term, and the defendant has further appealed to this court.
The appellant, through the demurrer to his answer, attacks the complaint and urges in this court that it does not contain facts sufficient to constitute a cause of action against him.
He has the right to thus bring the question of the sufficiency of the complaint to our attention, and to have a decision upon it. If the complaint was bad, it was error to sustain a demurrer to the answer to it, however defective it may have been as an answer to a good complaint. Tillotson v. Stipp, 1 Blackf. 77; Perkins Prac. 236; Shook v. The State, ex rel., etc., 6 Ind. 113; Wiley v. Howard, 15 Ind. 169; Buskirk Prac. 179.
This action, so far as we are enabled to judge from the averments in the complaint and the facts stated in the answer, was prosecuted on the theory that the appellee had to pay the mortgage from Hock to Stewart to protect
"We think it essential that the appellee should have alleged, in addition to the other averments in his complaint, that, relying upon the correctness of the appellant’s abstract, he became the purchaser of the lot in question, before he can maintain his action for any mistake or omission in the abstract.
In our opinion, the complaint is clearly insufficient. In consequence, we hold that the court below erred in sustaining the demurrer to the appellant’s answer to it, and for that reason the judgment must be reversed.
The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.