54 Ind. 487 | Ind. | 1876
On the 2d day of November, 1865, the appellants, as plaintiffs, commenced this action in the court below, against one Sidney C. Bloomhuff as the sole defendant. Issues were formed in the action, and at the May term, 1867, of the court below, these issues were duly submitted to a jury for trial; and on the application of the appellants, under the direction of the court, the jury returned into court a .special verdict. And at the same term of the court below, the said Sidney C. Bloomhuff", then the sole defendant, moved the court for a new trial of the action. At the next term of the court below, said Sidney C. Bloomhuff moved the court for a venire de novo, and also in arrest of judgment; and appellants moved the court to strike out the written causes for a new trial, and affidavits and counter-affidavits were filed by the parties in support of, and in opposition to, the said motions or some of them. And the court below sustained the appellants’ motion to strike out the written causes for a new trial, and to this decision the said defendant excepted; and the court then overruled the said motion for a new
It does not appear from the record, that any amended or supplemental complaint, making new parties defendants, was ever filed by the appellants; nor does it appear that the appellees or any of them were in any manner made parties to the appellants’ original complaint, nor that the appellees or any of them were ever served with process in this cause. But at the November term, 1870, the adult appellees, by attorney, and the infant appellees, by guardian ad litem, appeared and filed their joint answer, and the appellants replied thereto by a general denial. And the action being at issue was tried by the court below, without a jury; and the court found for the appellees, and rendered judgment accordingly.
The appellants have assigned, in this court, the following alleged errors of the court below :
First. In sustaining the motion of the defendant, Sidney C. Bloomhuff, for a venire de novo, and in ordering said venire de novo to be issued in said cause;
Second. In ordering the special verdict in said cause to be set aside, and a venire de novo to be issued; and,
Third. In'overruling appellants’ motion for a judgment in their favor, on said special verdict.
Before considering the questions presented by these alleged errors, it is proper that we should give a summary, at least, of the pleadings filed by the parties respectively,
“ The appellants brought this suit in the court below to set aside a deed for fraud, and to redeem. Their complaint contains two paragraphs. The first sets up the agreement between the parties and a circumstantial history of the fraudulent practices indulged in by said appellees’ ancestor to secure the deed, and asks the deed set aside.
“ The second paragraph sets up the terms of the agreement, and such facts as the appellants insist make the conveyance a security for money owing from Gibfords to Bloomhuff. The allegations in the first paragraph are substantially as follows:
“ That on the 6th day of March, 1858, one Saloam Gibford, who was then the wife of Abraham Gibford, since deceased, owned eighty acres of land, therein described, and executed five promissory notes to one Simpson Gibford, amounting in the aggregate to the sum of one thousand six hundred and fifty dollars, and a mortgage on the said land to secure the same. That the said Simpson sold said notes to the defendant, Sidney C. Bloomhuff, for one thousand one hundred dollars. That these notes were taken up by the said Saloam’s husband, Abraham Gibford, Sr., by giving his three notes to said Bloomhuff, amounting to one thousand seven hundred and ninety dollars, which notes were secured by a mortgage on the same land.
“ That on the 18th of June, 1861, said Bloomhuff took a judgment on said last named notes and a foreclosure of the mortgage, in the Allen common pleas court. That on the 5th of June, 1862, said Abraham and Saloam executed a deed to said Bloomhuff' for one hundred and twenty-three and one-half acres of land; part thereof being the*491 said eighty acres belonging to said Saloam and the balance belonging to said Abraham.
“ That at the time said deed was executed, said Abraham Gibford was involved, so that he and his said wife had no expectation of being able to raise the means to pay off the said judgment of foreclosure, except by sale of the moi’tgaged property. That Gibford was old and infirm, and he and the defendant were on terms of intimacy and friendship, so much so that Gibford had implicit confidence in him. That Bloomhuff, to increase his influence and control over Gibford, affected to take great interest in his affairs and offered to assist him in his financial difficulties. That to get said Gibfords to execute the deed, Bloomhuff’ fraudulently represented to them that the mortgaged lands would sell better by adding to them the other lands belonging to said Abraham, and that they would be more valuable and sell better together than separately, and that if they would convey the whole of them to him, they should have the right to sell the same, and he would convey to their vendee and retain out of the purchase money enough to repay him the one thousand one hundred dollars he paid Simpson Gibford, and the interest tbpreon, and they were to have the balance.
“ That he didn’t want the land, but his said money and interest. And Bloomhuff further represented to them if they could not sell the property but could raise him said one thousand one hundred dollars, and interest thereon, he would reconvey the property to them; or, if they could do neither, he would pay off’ one thousand eight hundred and forty dollars, more, of said Abraham’s debts. That the Gibfords, moved by said representations and promises, and having full faith and confidence in said Bloomhuff’ and in his integrity and that he would carry out said promises, made the deed.
“ The complaint proceeds to charge that said representations were concurred in by the Gibfords and that they and said Bloomhuff' agreed, that although the sa;d deed*492 should be • absolute on its face, yet, the Gibfords should have the right to sell and receive all the purchase money except the one thousand one hundred dollars and interest, or if they could not sell but could pay that money and interest, he would reconvey to them, and if they could do neither, he would pay the one thousand eight hundred and forty dollars, additional debts, for Gibford. The complaint alleges all of said representations were false and fraudulent and made for the fraudulent purpose of getting said deed, with the original intention, at the time he made the said representations and promises, not to perform the same but to keep the land and cheat the Gibfords out of it.
“ The complaint then contains several averments in reference to Gibford’s sale of the land and application to Bloomhuff to make the deed, and his refusal, which facts, on account of Gibford’s death, were not proved nor found by the jury in their special verdict, and are not therefore material or necessary to he further noticed.
“ It- is further averred that Bloomhuff refused to perform any of his agreements, but that he took possession of the property on receipt of the deed and has retained the same ever since, and that the rents and profits were worth two thousand dollars. There are some other formal allegations in reference to descents, parties, etc.
“ The second paragraph is essentially a paragraph seeking to redeem against the deed as a mortgage.”
The defendant, Sidney C. Bloomhuff, answered the appellants’ complaint by a general denial, and by two special paragraphs; but as no questions are presented to this court having special reference to the sufficiency of the defendant’s answers, we need not now further notice them. To the defendant’s special answers, the appellants replied by a general denial, and by two special replies. The defendant moved the court below to strike out the third reply, which motion was sustained. And the cause was then submitted to a jury for trial, and this jury re-
That Saloam Gibford was, on March 6th, 1858, the wife of Abraham Gibford, Sr., and seized of certain lands, particularly described, in fee simple, in Allen county, Indiana, being part of the lands described in the complaint ; that on said day she executed to Simpson Gibford five notes, amounting in the aggregate to one thousand six hundred and fifty dollars, and a mortgage on her said lands to secure the payment thereof; that said Simpson Gibford sold and assigned said notes and mortgage to the •defendant, Sidney O. Bloomhuff', on March 6th, 1861, for one thousand one hundred dollars; that on said day, Abraham Gibford executed to the defendant three notes, amounting in the aggregate to one thousand and seven hundred and ninety dollars, and with his wife, Saloam Gibford, executed to the defendant a mortgage on her said lands to secure the payment of said notes ; that said first mentioned notes and mortgage were paid and can-celled by the execution and delivery of said last mentioned notes and mortgage; that the defendant recovered judgment on said notes against said Abraham Gibford, in the court of common pleas of said Allen county, for one thousand eight hundred and twenty-five dollars and fifty cents, on .June 18th, 1861, and a decree for the foreclosure of said mortgage against said Abraham and Saloam Gibford; that on June 5th, 1862, said Abraham and Saloam Gibford executed to the defendant a deed, conveying to him the lands therein described, being the same deed mentioned in the complaint in this cause, and the lands being the same lands described in said complaint; that the said mortgaged lands were included in said deed and were, prior to said deed, the property of said Saloam Gibford; that all the remainder of said lands were, prior to the execution of said deed, the property of said Abraham Gibford.
That the said deed was obtained by the said defendant
That on June 9th, 1862, the defendant entered satisfaction of his said decree of foreclosure, and that satisfaction
If, upon the facts so found, the court below should be of the opinion that the law was for the appellants, then the jury found for the appellants; but if the court below should be of opinion, on said facts, that the law was for the defendant, then the jury found for the defendant.
It will be seen from appellants’ assignment of errors, before referred to, that the only questions thereby presented for the consideration of this court may be thus stated:
'First. Did the court below err in overruling appellants’ motion for a judgment in their favor, on the special verdict of the jury?
Second. Did the court below err in sustaining the motion of the defendant, Sidney C. Bloomhuff, to set aside the-special verdict of the jury, and for a venire de novo ?
And these two questions may be regarded as but one, for if one of them be answered 'in the affirmative, that answer of itself negatives the other. So that the only real question in this case is this: Does the special verdict returned by the jury on the trial of this cause contain all the legal requirements of a special verdict ? Our code of practice defines a special verdict thus: “A special verdict is that by which the jury find the facts only, leaving the judgment thereon to the court.” 2-R. S. 1876, p. 171, sec. 335. In Bird v. Lanius, 7 Ind. 615, it was held, by this court, that by a special verdict was meant, “ not an isolated fact, tending to support or defeat an issue, but it is an issue joined between the parties, arising upon a cause of action in the complaint, and a denial of it in the answer, or upon a defence set up in the answer, put in issue by the reply.” A special verdict must contain a finding by the jury, pro or con, as to every material fact in issue, necessary to constitute the plaintiff’s cause of action or the defendant’s defence. And the reason for this requirement is, that the
The case last cited was an action against two defendants, the plaintiff’s complaint containing four paragraphs; and the jury trying the cause had returned a verdict for the plaintiff upon the first two paragraphs of the complaint, as against both defendants, and upon the last two paragraphs of the complaint, as against one only of the defendants, and finding neither for nor against the other defendant, on said last two paragraphs. In the lower court there was a motion for a venire de novo, on the ground that the verdict was defective in not finding for nor against one of the defendants, on the issues joined on said last two paragraphs of the complaint, but the motion was-overruled, as was also a motion for a new trial, by the court below. On appeal, it was held by this court, that the venire de novo should have been awarded, and the court approved of this statement of the law, upon the subject now under consideration, saying: “If a jury finds but part of the matter put in issue, and says nothing as to the rest, the verdict is ill, and a venire facias de novo shall issue if no judgment is given, but if judgment is given upon such verdict, it shall be reversed.” In Stephen PI., 3d Am. Ed. 100, it is said, that a venire facias de novo will be awarded when the jury has “given an uncertain, ambiguous or defective verdict.”
In our opinion, we have now stated fully and correctly the law of this State on the subject of defective verdicts. Applying this law to the case at bar, the question arises,
We have examined the special verdict in this case with great care, and have endeavored to give to each word and expression therein its full force and meaning. We have studied the issues in this cause arising under both paragraphs of the complaint and under the special answer of the defendant, and we have carefully compared the facts found by the jury in their special verdict with the facts alleged and in issue by and between the parties to this action, and from this comparison the conclusion is irresistible, that, in and by their special verdict in this case, the jury found but a part of the matter put in issue and said nothing as to the rest. Indeed, it seems to us, from this comparison, that the draftsman of this special verdict, in his anxiety to' prepare a verdict for the jury which would cover every material averment of the first paragraph of appellants’ complaint, must have entirely overlooked the second paragraph of said complaint and partly, at least, the averments of the defendant’s special answer.
In their statement of the second paragraph of appellants’ complaint, appellants’ learned attorneys, with all the brevity of wit, have condensed this second paragraph, covering eight long pages of manuscript in the record of this cause, into this concise expression: “ The second paragraph is essentially a paragraph seeking to redeem against the deed as a mortgage.” But brief as is this statement, the jury have failed to find, in their special verdict, even this much in relation to the second paragraph of appellants’ complaint; they wholly failed to find whether the deed in question was or was not, fin legal effect, a mortgage, or to make such a finding of facts in connection with said deed as that the court below
And so, also, in reference to the averments of the second paragraph of the defendant’s answer, upon which issue had been joined by the appellants, by their reply in denial thereof. The defendant, in this second paragraph of his answer, had set up, by way of estoppel, in substance, the following facts: that about nineteen months after the execution of the deed to the defendant, mentioned in appellants’ complaint, to wit, on the 16th day of January, 1864, the said Abraham Gibford, being then the owner of about four acres of land adjoining the lands he had before that time conveyed to the defendant in the aforesaid deed, proposed to sell and convey to the defendant the said four acres of land, to be used by said defendant, in connection with said adjoining lands, as and for a building site, for the sum of two hundred dollars, being more than double the value thereof; that said four acres of land was desirable for the purpose of a building spot, and the defendant was desirous of owning it for that purpose, which said Abraham well knew, and because he so knew it he proposed to sell the same for that purpose, and demanded therefor double its value; that to secure said piece of land the defendant agreed to and did purchase the same of said Abraham for said sum of two hundred dollars, which he paid, and thereupon the said Abraham and his wife conveyed said piece of land to the defendant for said purpose; and the defendant averred, that, at the time said conveyance was made, the said Gibford knew fully and entirely all the facts connected with the purchase of the lands mentioned in appellants’ complaint.
Now, all the matters alleged in this second paragraph of the defendant’s answer were directly put in issue by appellants’ reply in denial thereof. Of these matters, the jury have found, in their special verdict, the fact, only, of the execution of the deed in said second paragraph of
The judgment of the court below is affirmed, at the costs of the appellants.