34 Ind. App. 490 | Ind. Ct. App. | 1905
This canse might, and, strictly speaking, should, be affirmed for failure of appellant to' file a brief complying with rule twenty-two' of the Supreme and this Court. Appellee insists upon an affirmance of the judgment for that cause. This rule, adopted in pursuance of law, enters into and becomes a part of the law governing litigants in the presentation of their causes of action on appeal, and should not be ignored or disregarded. Smith v. State, ex rel. (1894), 140 Ind. 340. But, as appellants have made some attempt to comply with the role, we have concluded not to invoke it, and will proceed to pass upon the merits of the case.
This was an action begun in the Elkhart Circuit Court by appellants and others to- cancel a note and mortgage on certain real estate in the city of Elkhart on account of an alleged breach of warranty in a deed from appellee to appellants’ decedents. Briefly, the complaint avers that appellee Mary S. Sherwood and her husband, Bradford D. Sherwood, conveyed by warranty deed to appellants’ decedents a parcel of land described in the deed, which deed is made an exhibit and part of the complaint; that the land consisted of a business lot in the city of Elkhart, twenty-six fet wide, fronting on Main street, and eighty-two and one-half feet long east and west, fronting on Lexington avenue, formerly Pigeon street; that there was then and is yet an encumbrance on said lot, consisting of a permanent and perpetual easement and right of way twelve and one-half .feet wide over and across the east end thereof, being a cart-way or roadway for the use and benefit of the proprietors of other lots north thereof, and to allow them ingress and' egress to and from the rear ends of their said lots; that, because of such cartway and easement, the grantees in said deed, and their successors and assigns, are and ever will be
To this complaint the appellee files an answer in general denial, also two paragraphs of counterclaim. The material averments of the first being that, since the execution of the deed aforesaid, her husband, Bradford D. Sherwood, departed this life, leaving no interest or right in said real estate to any other person than this appellee. She admits the execution of the deed, a copy of which is filed with the complaint, but says: “That at the time of its execution she was the owner of a parcel of land described as follows: ‘Commencing at the southwest corner of lot No; 12 in the original plat of the town (now city) of Elkhart; * * * thence north, with the east line of Main street of said town, twenty-six feet, to the southwest corner of the brick building owned by John Dalton; * * * thence east, parallel with the south line of said lot No; 12, eighty-two and one-half feet; thence south to the south line of said lot No. 12; thence west along said south line to the place of beginning; together with the right of way across said lot No. 12 and also lot No. 11 of said original plat to an open cartway within five rods of Main street;’ that the above-described
The appellee further avers “that all the parties supposed and believed that the description inserted in said deed properly and truly described her interest in said land and in said cartway, which it did not do. She further says that,
It is also averred that one of the grantees in said deed, “Ruel M. Johnson, was then, and for more than twenty-three years then last past had been, an attorney at law at the bar of said court, distinguished and famous for his learning and ability, all of which was well known to her, and that she then had the utmost faith in his ability and integrity, and upon his promise so to write said note that it would include attorneys’ fees, as aforesaid, she relied. She says that the said Ruel M. Johnson, acting for himself and Guy C. Johnson, betrayed her confidence, and wrote the said note as it appears above; that in order to throw her off her guard, he took a printed form of note, which had therein the clause 'and payee’s attorneys’ fees,’ without any condi
Briefly stated, appellee’s second paragraph of the counterclaim avers that on the 8th day of September, 1890, she was the owner of certain real estate in the city of Elkhart, described as “commencing at the southwest corner of lot No. 12 in the original plat * * * and running thence
Appellants moved to strike out the last paragraph of counterclaim,- which was by the court overruled. Appellants thereupon filed a demurrer for want of sufficient facts to each paragraph of the counterclaim, which demurrer was overruled. Appellants answered each counterclaim by general denial, the cause was submitted to the court for trial, and, by request of each of the parties, "special findings of fact were found by the court, and, in so far as they are material to this decision, are as follows:
“(2) That on the 8th day of September, 1890, the defendant Mary S. Sherwood was the owner in fee simple of the following described real estate in Elkhart county, in the State of Indiana, to wit: Commencing at the southwest corner of lot No. 12 in the original plat of the town (now city) of Elkhart, as the same is designated upon the original plat of said town, and duly recorded in the recorder’s office of said county; and running thence north, with the east line of Main street of said town, twenty-six feet, to the southwest corner of a brick building owned by John.Dalton; thence east, parallel with the south line of said-lot No. 12; thence south to the south line of said lot No. 12; thence west along the south line of said lot No, 12 to the*499 place of beginning; together with the right of way across said lot No. 12 and also lot No. 11 to an open cartway within five rods of Main street; also the above described tract of land subject to said open cartway which extended across its east end, which cartway was an easement in favor of all the owners of said lots No. 11 and No. 12.
“(3) That for several days prior to September 8, 1890, the original plaintiffs, Guy C. Johnson and Ruel M. Johnson, had been negotiating with the defendant Mary S. Sherwood for the purchase of said tract of land, which had a frontage of twenty-six feet on Main street and a depth of eighty-two and one-half feet along Pigeon street; that said land was then occupied by a two story frame building, about twenty-five feet wide, extending from Main street along Pigeon street seventy-five and one-half feet; that at the east line of said land, eighty-two and one-half feet east of Main street, was a two-story brick building, fronting south on Pigeon street, and extending north along the east line of said land for its entire length, and still farther to the north, which two-story brick building was owned by another person ; that between the east end of the building on said land owned by Mary S. Sherwood and said brick building, there was an open and visible cartway seven feet wide, extending from Pigeon street north across the east end of said tract of land so owned by said Mary S. Sherwood, and also across the remainder of lot No. 12, and also across lot No. 11, adjacent thereto on the north; that said cartway, for its entire length north of the building so owned by the said Mary S. Sherwood, was twelve and one-half feet wide; that said cartway was originally twelve and one-half feet wide for its entire length, but that in the year 1874 the then owner of the land above described as owned by the defendant Mary S. Sherwood extended his two-story frame building five and one-half feet into said cartway, leaving it but seven feet wide, in which condition it remained froln that time until !A.pril, 1903, when said building was tom away; that the*500 original plaintiffs, Guy O. Johnson and Duel M. Johnson, during the time they were negotiating with the defendant Mary S. Sherwood for the purchase of said premises, inspected them, and saw said open cartway and said buildings, and knew that the land so owned by the said Mary S. Sherwood only extended east to said brick building; that they saw said open cartway, and knew it was the cartway mentioned in the deed which Mary S. Sherwood afterwards executed to them; that it was the intention of the said Mary S. Sherwood to sell the land which she actually owned, subject to the easement of said cartway, and to convey to the original plaintiffs the right to use the said cartway along with the other owners of said lots No. 11 and No. 12; that it was the understanding of the original plaintiffs that they were purchasing of the defendant Mary S. Sherwood the land which she actually owned, subject to the said cartway, together with the privilege of using said cartway along with the other owners of said lots No. 11 and No. 12.
“(4r) That on the 8th day of September, 1890, the parties came to an agreement in regard to the sale and purchase of said land, which agreement was that said Mary S. Sherwood, her husband, Bradford D. Sherwood, joining, should convey by warranty deed to the original plaintiffs, for the sum of $6,000, said real estate, subject to said cartway, and with the privilege of using said cartway along with the other owners of said lots No. 11 and No. 12; that, in order to carry out said agreement, the deed upon which the amended complaint is based and the note and mortgage set up in the amended counterclaim of Mary S. Sherwood were executed; that the original plaintiff Buel M. Johnson, being a lawyer, offered to draw up the papers, which offer was accepted, and he did draw them up; that the language used by him did not express their real intentions and agreement; that all the parties understood the meaning of the language used, but were all mutually mistaken in supposing and believing that that language correctly described the premises*501 to be conveyed, and the rights of the parties therein; that said deed and mortgage, in order to have expressed the true contract of the parties, ought to have conveyed a parcel of land twenty-six feet by eighty-two and one-half feet, as described in said deed; and then ought to have added: ‘Together with the right of way across said lot No. 12 and also lot No'. 11 of an open cartway'within five rods of Main street; also subject to said cartway across the above-described tract.’
“(5) That it was the intention of the original plaintiffs to execute a note to said Mary S. Sherwood, and her intention to receive a note that would enable her to collect attorneys’ fees; that there was no mistake in drawing said mortgage in regard to amount, time or attorneys’ fees.
“(6) That there is now due of principal and interest on said note and mortgage the sum of $3,054, and that a reasonable fee for the attorneys of said Mary S. Sherwood is $500, making a total of $3,554.”
Upon such findings of fact the court announced the following conclusions of law:
“(1) That the defendant Mary S. Sherwood is entitled to have said deed, note and mortgage reformed, as prayed by her in her amended counterclaim, and that she is entitled to have said mortgage, as thus reformed, foreclosed, as against all the parties to this action, for the sum of $3,554, and that she is entitled to a personal judgment for said amount against the personal representatives, respectively, of said Guy C. Johnson and Ruel M- Johnson, the original plaintiffs herein, to be wholly collected from the estate of Ruel M. Johnson, if said estate shall have sufficient assets wherewith to satisfy the same, and, if not, the residue to be collected from the estate of Guy O. Johnson; that the sale on said foreclosure shall be without relief from valuation laws; and that she recover her costs. (2) That the plaintiffs take nothing by their action.”
“To which conclusions of law each plaintiff severally at
Appellants assign as error in this court: (1) The court erred in overruling appellants’ motion to strike out the third paragraph of counterclaim; (2) the court erred in overruling appellants’ demurrer to the second paragraph of counterclaim; (3) the court erred in overruling appellants’ demurrer. to the third paragraph of counterclaim; (4) the court erred in overruling appellants’ motion to modify the sixth finding of fact; (5) the court erred in each of its conclusions of law; (6) the court erred in overruling appellants’ motion to set aside the decree of foreclosure; (Y) the court erred in overruling appellants’ motion for a new trial; (8) that appellee’s second and third paragraphs of cross-
This being a term-time appeal, it is not necessary for us to consider the question of notice to the parties of this appeal.
In the case'of Ray v. Moore (1900), 24 Ind. App. 480, the court, in speaking of inconsistent defenses, say: “Each defense must be set up in a separate paragraph, and each paragraph must be complete in itself. [Citing authorities.] Each pleading must stand on its own ground. The admissions made in one pleading are conclusive as to that pleading, but can not be used as evidence in issues joined in other pleadings.” Citing authorities. The doctrine as thus enunciated in the case of Ray v. Moore, supra, is well supported by authority, not only in this State, but by the deci
The object of this paragraph is to reform and correct the deed from appellee to appellants’ decedents for the real estate mentioned in appellants’ complaint, and'also to reform and correct a mortgage and note given by appellants’ decedents to this appellee on the real estate sought to be conveyed, which mortgage was given to secure the balance of unpaid purchase money, as evidenced by the note described in the mortgage. The grounds for the reformation of the deed and mortgage are based upon mutual mistake of the parties and the scrivener who wrote the deed and mortgage, in describing a cartway or easement over and across the east end of the real estate conveyed, as being east of, and not over and across, the real estate, as they intended and agreed it should be. The appellants insist that the pleading does not “point out with clearness wherein there was a mistake,” and for this reason the pleading is demurrable.
The third assignment of error is not discussed by appellants, and the same is thereby waived. But in any event it clearly appears from the record in this case that all of the rights of counterclaimant as found by the court are based upon her first paragraph, and any ruling of the court below on the third paragraph of answer, or, rather, second paragraph of counterclaim, was in nowise detrimental to appellants. If the ruling was harmless, appellants have no ground for complaint. Insurance Co. of North America v. Hegewald (1904), 161 Ind. 631; Norton-Reed Stone Co. v. Steele (1903), 32 Ind. App. 48.
As to the fourth assignment of error, appellants contend “that the note and mortgage as set up by appellee show that no attorneys’ fees can be collected thereon, and the findings of the court do not show that any mistake therein was made which can be corrected by the court.” And therefore the sixth finding of fact should have been modified “by striking out the following, ‘and that a reasonable fee for the attorneys of said Mary S. Sherwood is $500,’ and in lieu thereof insert ‘that the defendant is not entitled to recover attorneys’ fees on the note and mortgage set forth in her said counterclaim.’ ” The averments in the first paragraph of
In the case at bar, ’as part of the fourth finding, we have the following: “That, in order to carry out said agreement, the deed upon which the amended complaint is based, and the note and mortgage set up in the amended counterclaim of Mary S. Sherwood, were executed.” Turning to the mortgage as set forth in the amended counterclaim, we find this provision: “And the mortgagors expressly agree to pay the sum of money above secured and all of mortgagee’s attorneys’ fees without relief from valuation or appraisement laws.” In the fifth finding: “That there was no mistake in drawing said mortgage, in regard to amount, time or attorneys’ fees.” Finding number six: “That there is now due of principal and interest on said note and mortgage the sum of $3,054, and that a reasonable attorneys’ fee for the 'attorneys of said Mary S. Sherwood is $500, making a total of $3,554.” Under these facts, the conclusion of law as to attorneys’ fees may be sustained. The finding of facts sustaining appellee’s counterclaim was a complete defense to appellants’ cause of action, and therefore the conclusion of law that appellants take nothing by their action was correct. If we are correct in the above conclusions, the court did not err in overruling appellants’ motion to set aside the judgment of foreclosure.
Appellants assign six reasons why a new trial should be granted: “(1) The court erred in admitting certain evidence; (2) that the court erred in overruling the plaintiffs’ motion to modify and change its finding of fact; (3) that the court erred in overruling plaintiffs’ motion to strike out and reject the third answer and counterclaim filed herein; (4) for error in the assessment of the amount of recovery because the amount is too large; (5) that the decision is not sustained by sufficient evidence; (6) that the decision is contrary to law.” Appellants waived the first and fifth reasons. All the other reasons have been fully discussed
Finding no error in the record authorizing us to reverse the judgment, the same is affirmed.