151 Ind. 371 | Ind. | 1898
This was a suit by the appellee against the appellant and others, whose interests are not here involved, for the reformation of a written contract in which the parties agreed upon one of the boundary lines dividing lands of the appellee from the tract of the appellant in the city of Michigan City.
The cause was tried upon several paragraphs of complaint, and resulted in a special finding of facts and conclusions of law in support of the third paragraph of complaint as amended. While the sufficiency of the several paragraphs of complaint is attacked by the appellant, there is no disagreement upon the proposition that, under the practice, the question raised upon the conclusions of law render it unnecessary to consider any question upon the sufficiency of the complaint. Woodward v. Mitchell, 140 Ind. 406; Scanlin v. Stewart, 138 Ind. 574; Stephenson v. Boody, 139 Ind. 60; Robinson v. Dickey, 143 Ind. 205; Tewksbury v. Howard, 138 Ind. 103. The contract in question, which was set out in the findings, was, in its essential features, “that for the purpose of establishing the division line between certain real estate owned by the parties” it was agreed, “each with the other, that the line” described “shall be, and the same is hereby, established and confirmed as the division line supporting and dividing the real estate owned by Malott on the northerly side of said division line from the real estate owned by the other parties hereto lying on the southerly side of said division line.” Said line is then particularly described by courses, distances, and monuments, and is made more particular by ref
The first twenty-two of the courts findings of fact relate to the source of the title, and descriptions of the lands owned by the several parties. It is further found that neither the appellant nor the appellee knew the location of the true dividing line between their respective tracts; that the true line was 103 feet southeast of the line designated in said contract, that Is to say that the line described in the contract gave the appellant a strip of ground west'of the true line 103 feet wide, and took that much from the appellee; that in the year 1887 Phillip Zorn, appellant’s grantor, purchased the land east of the true line and procured a survey to be made to ascertain the line dividing them from the lands of the appellee, which survey erroneously located the division line' on the line described in the contract, and said Zorn thereupon built a fence upon said line, which fence existed at the time of the contract. Of said survey and the erection of said fence- Malott had no knowledge until just before the execution of said Contract, in August,. 1894; that the appellant and the appellee “each and both honestly intended' and believed that the line so run and embodied in said contract was the true dividing line dividing their properties,” and “each and all were mistaken in the location of the line stated in said
It is not found as a fact that the parties intended or agreed arbitrarily to recognize, establish, and perpetuate the fence line as the true line. All that we learn of such possible intention is from the words of the writing, from which we are not to infer a fact, and at most could rest a conclusion of law, a conclusion as to its legal effect. The writing, therefore,
We would not diminish the powers of the chancellor to administer full and exact justice in disregard of mere fruitless technicalities, where the parties submit their grievances to a court of equity; but, since the evidence was in marked conflict as to the location of the true line, the court feeling called upon to state that his finding was upon a mere preponderance of the evidence, we feel that the ends of justice will be the better subserved by permitting a new trial upon more comprehensive pleadings. The decree of the circuit court is reversed, with instructions to grant a new trial, and for further proceedings in accordance with this opinion.