61 Ind. 147 | Ind. | 1878
Suit to correct an alleged mistake.
The complaint states, that, on the 29th of April, 1873, Charles T. Gough was the owner of a certain tract of land, containing ninety-four acres, in the south-east quarter of section 21,. township 16 north, of range 12 east,¡on which said Gough and wife then resided, which was known as the “Home .Farm;” that it was all the land said Gough owned in said quarter section, and was designated on the treasurer’s books for taxation, as the “ west middle division of the south-east quarter of section 21, township 16, range 12, containing 95 acres;” that, on the day aforesaid, he, said Gough, owed the plaintiff five thousand dollars for money loaned, which he was unable then to pay; and, with his wife, Mary, then and there promised one Oliver T. Jones, who was then and there cashier of said plaintiff, and acting on behalf of said plaintiff, that, in consideration of the extension, by plaintiff', of the time of payment of the said debt for twelve months from and after said date, he, the said Charles, would execute to the plaintiff' his note for $5,000, payable in twelve months, with 10 per cent, interest from date, payable quarterly in advance, and that they, the said Charles T. Gough and Mary C. Gough, would execute a mortgage, in due form of law, upon the ‘Home'Farm’ of said Gough, upon which he then resided, of 95 acres, to secure the paymeut of such note, according t.o the tenor and effect thereof.
The complaint further alleges, that, on said 29th of April, 1873, the defendant Charles T. Gough executed his note for five thousand dollars to the First National Rank of Centreville, Indiana, and, on the same day, executed to said bank, his wife joining therein, a mortgage to secure the payment of said note, upon the land described therein as follows, viz.: “West middle division of S. E. quarter, section 21, township 16, range 12, containing 95 acres; ” which mortgage was recorded on the next, day, April 30th,. 1873.
The complaint further alleges, that, after the recording of said mortgage, but before the foreclosure thereof, various judgments, by third parties, were obtained against said Gough in the Wayne Circuit Court; and that, on the 4th day of March, 1875, nearly two months prior to the judgment in favor of the bank, said Gough made an assignment of all his property, under and pursuant to the statute of the State in such cases made and provided, for the benefit of his creditors, to John Kepler and two others, who are duly executing said trust.
The complaint further avers, that said creditors were chargeable with, and had, notice of the intention of the parties to said mortgage, as to the property to be covered by it; that the plaintiff' did not discover the mistake till after the rendition of the decree of foreclosure, and not till shortly before the institution of this suit; and that the defendants refused to reform said mortgage or to assent to its reformation and the modification of said decree. “ The plaintiff therefore prays the court to require the defendants to answer hereto ; and, upon final hearing, will the court, by proper decree, cause the said mortgage to be reformed, and the said mistake and omission therei
A demurrer to the complaint was sustained; the plaintiff' declined to amend, and judgment was rendered, dismissing the suit with costs.
Exception and appeal.
Let us get a somewhat definite and concise statement of the facts of this case.
On the 29th day of April, 1873, Gough agreed to give, to the First National Bank of Centreville, a mortgage on the farm on which he resided, being an undefined part of a quarter section, to secure a prior existing, debt. The mortgage was thereupon drawn up by a scrivener, as appears, in the presence of the parties. No formulated description of the .property, to be inserted in the mortgage, had been agreed upon by the parties or prepared for the scrivener to copy. He, as we must presume, by their direction, incorporated the following into the mortgage, viz.: “"West middle division of S. E. quarter of section 21, township 16, range 12, containing 95 acres.”
The mistake, it thus appears, in the preparation of the. mortgage, was one of law, arising from the negligence of the parties in failing to acquire information as to the requisite description of the land to be inserted in the mortgage. They inserted a description such as they approved, but two years afterward found it was not full enough to identify the land, and now pray the court to insert for them such an addition as will effect such identification, and this after interests have been acquired by third persons in the land. And the ultimate question in the case to be decided by the court is: Should the prayer of the complainant be granted?
The preliminary questions are:
1st. Do the facts present a case in which a court of equity would supply the omission in this mortgage, as between the original parties, no rights of third persons intervening ?
2d. Is it a case for equitable interference, the plaintiff having already taken a decree of foreclosure of the mortgage without asking for its perfection, the suit being one in.which the perfection could have been decreed, if it were proper that it should be decreed ? See Miller v. Kolb, 47 Ind, 220.
Waiving the discussion of these question?, it seems to us, that the carelessness and negligence of the plaintiff were such as justified the ruling of the court below in dismiss
In Taylor v. Fleet, 4 Barb. 95, Edwards, J., states the rule of law on this subject to be as follows:
“ To entitle a party to relief in a court of equity, on the ground of mistake, in a case free from fraud, the mistake must be, 1. As to a material fact constituting the very essence and condition of the contract. 2. The mistake must be of a fact of such a nature, that the party could not by reasonable diligence get knowledge of it, when put upon inquiry. 1 Story Eq. Juris., sec. 146.”
In Wood v. Patterson, 4 Md. Ch. 335, the Chancellor says:
“ It is not, however; in every ease of mistake, even of a -material fact, that the court will grant relief, for if the mistake is the result of the party’s carelessness, or inattention, the court will not interfere in his behalf, its policy being to administer relief to the vigilant and to put all parties upon the exercise of a reasonable degree of -diligence.”
-Carelessness will not always be regarded in equity as a mistake. Voorhis v. Murphy, 11 C. E. Green, 434.
In Diman v. The Providence, etc., R. R. Co., 5 R. I. 130, Ames, C. J., closes his opinion with this remark: “In case's like this, where there has been no intermixture of fraud or surprise to put the applicant for relief off his guard, we must invent a new head of equity before we can interpose to save him, to the injury of others, against the effects of his own carelessness.”
In Lamb v. Harris, 8 Ga. 546, it is decided, that, “ Where a paiffy seeks to be relieved in equity, from the effect of a mistake, he must show due diligence on his part.”
In Nelson v. Davis, 40 Ind. 366, this language is used:
The instrument speaks, for aught that appears, just as-the pai’ties desired that it should. The mistake, then,
See, also, Murphy v. Hendricks, 57 Ind. 593.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.