35 Ind. App. 525 | Ind. Ct. App. | 1905
Action by appellant to reform a report of sale of real estate of the decedent made by the administrator
To the end that we may determine the correctness of the rulings on the demurrers to the several paragraphs, of answer, it is important to understand the nature of the action as disclosed by appellant’s amended complaint. It is therein averred that appellant’s decedent died in February, 1884, and that he left no widow, father, mother or children surviving him; that appellant was appointed and qualified as administrator on the 7th_day of March following; that in May, 1885, he filed a petition praying for the sale of the real estate owned by the decedent, and that one of the tracts of land to be sold under said proceeding was described as follows: “Beginning at the northeast corner of the southeast quarter of the southeast quarter of section two, township thirteen north, of range eight west, and running thence north to the northeast corner of the southeast quarter of said section two; thence west to the land now owned by Sarah A. Vansell in said southeast quarter of said section two; thence southeastwardly along the northeast line and boundary of said lands’ of Sarah A. Vansell to' the place of beginning — containing twelve acres, more nr less.” It is then averred that the above description of the real estate embraced and contained thirty-nine acres, instead of twelve acres, more or less, and that appellant was wholly ignorant of said fact; that on the 23d of June, 1885, the court ordered appellant, as administrator, to sell “twelve acres, more or less, embraced in and described by the foregoing description,” both the court and the appellant being ignorant at the time of the fact that the above description embraced
It is then averred that both the appellant and said Sarah A. Vansell wore ignorant as to the amount of land described in said deed, and both believed the same to, describe only “twelve acres, more or less”; that appellant intended to sell to said Sarah A. Vansell, and she intended to. buy, only “twelve acres, more or less,” of the land described, “which ought to have been, and was intended by said parties to be, described as follows: Beginning at the northeast corner of the southeast quarter of the southeast quarter of section two, township thirteen north, of range eight west, and running thence northwestwardly “to a hickory tree, and thence in the same direction to the half-section line — running east and west — and thence east thirty rods; thence in a southeastwardly direction, a line parallel with the line first above described to the east line of said section two; thence south to the place of beginning — containing twelve acres, more or less”; that, by the. mutual mistake and ignorance of the parties to said deed, the description as therein contained was inserted; that said deed containing said description of thirty-nine acres, was reported to- the court on the 2d day of November, 1885, and was duly confirmed, and that both the court and the appellant were ignorant of the mistake in the description; that said Sarah A. Vansell took possession of the entire tract, and that she and her husband, the appellee Rowland Vansell, continued in possession until her death in May, 1888, and that since her death said Rowland Vansell has ever since had, and now jointly with- his corappellee has,
It is further averred that on the 23d day of November, 1890, said Rowland Vansell intermarried with his coappellee, who is now his wife, and that on the 9th day of September, 1892, he conveyed all of his real estate to his coappellee, who then and there had notice of said paistake in said description, and that her said grantor was entitled to only “twelve acres, more or less,” of said thirty-nine acres first described, and that appellant sold to Sarah A. Vansell only “twelve acres, more or less.” It is then averred that appellant’s decedent is indebted to the amount of $1,000, as shown by claims filed and allowed against said estate, and that there is no other property, real or personal, out of which said debts and the cost of administration can be paid; that appellees refuse to correct said mistake, or to reconvey said real estate not intended to be conveyed as aforesaid, but hold and claim to hold the entire thirty-nine acres, as embraced in the original description. The prayer of the complaint is
Appellees answered separately. The separate answer of Rowland Vansell is in four paragraphs. The first is a denial. The second pleads the five-year statute of limitations. The third paragraph relies upon an estoppel by conduct, in which it is averred that the sale, as originally made, has been confirmed by appellant in the following manner: That said land was sold for $240, $80 of which was paid in cash, and that the deferred payments of $80 each were evidenced by promissory notes executed by the purchaser; that said notes were secured by mortgage on the real estate, which said notes and mortgage were made payable to the appellees; that, before the bringing of this action, appellant transferred said notes and mortgage by indorsing the same to James H. Carithers, and that said transfer was made for a valuable consideration; that thereafter, to wit, September 24, 1896, said assignee brought suit against appellees to foreclose said mortgage; that a decree of foreclosure was entered in said cause on the-day of-, 1903; that the land described in said mortgage was the identical land described in appellant’s complaint and in his petition as administrator to sell, and also, as described in the deed of appellant to Sarah A. Vansell, and which, as alleged in appellant’s complaint, contained thirty-nine acres; that under the decree of foreclosure said real estate was ordered to be sold to pay said deferred payments. And it is averred that by reason of said facts said sale has been fully confirmed by appellant and by his assignee, and that by reason of which appellant is estopped to maintain this action. The fourth paragraph is in all essential regards the same as the third.
The first, second, third and fourth paragraphs of answer of -the appellee Maggie Vansell are identical to those of her co-appellee. In her fifth paragraph of answer she avers that on or about November 20, 1890, she entered into a contract
It is not averred that either Rowland or Maggie knew that the land sold at the administrator’s sale, as described in the petition, was thirty-nine acres, nor is it averred that it required the thirty-nine acres to make up the ninety-five acres which the former agreed to convey to the latter. If Maggie had conveyed to her ninety-five acres of land, including the twelve acres that was intended in the first instance to he sold and conveyed, then she got all that she contracted for. If she is to retain all the land as described in the complaint, then she has one hundred twenty-two acres instead of ninety-
In the case of Singer v. Scheible (1887), 109 Ind. 575, at page 583, the court say: “It is manifest, we think, the law requires that the commissioner’s deed should contain these recitals and references, to the end that the grantee in such deed, and all persons thereafter interested in the title to the real estate therein described, might readily ascertain from the ‘record, number of volume and page,’ all matters there shown affecting such title. We are of opinion that the recitals and references in the commissioner’s deed, the substance of which we have given, were sufficient to put any person claiming title by, through or under Richard H. Singer, the grantee in such deed, upon inquiry as to the character, extent and contents of the order and judgment, under and pursuant to which the deed was executed. That which shall be sufficient to put the party upon inquiry is notice. Hiern v. Mill [1806], 13 Ves. 114. ‘And so it is in all cases where the purchaser can not make out a title but by a deed; which leads him to another fact: the purchaser shall not be a purchaser without notice of that fact, but shall be presumed cognizant of it; for it is crassa negligentia that he sought not after it.’ ” Citing Mertins v. Jolliffe (1756), Ambl. 311, 314. See, also, Brush v. Ware (1841), 15 Pet. 93, 104, 10 L. Ed. 672; Coy v. Coy (1870), 15 Minn. 119; Wood v. Krebbs (1878), 30 Gratt. 708; Cordova v. Hood (1872), 17 Wall. 1, 21 L. Ed. 587; Dickinson v. Worthington (1880), 4 Hughes (U. S. C. C.) 430; Lovejoy v. Raymond (1885), 58 Vt. 509, 2 Atl. 156.
And so if Maggie Vansell had examined this deed of the administrator to Sarah A. Vansell — and the law presumes that she did so — then she discovered that the administrator sold only twelve acres of land, more or less. And if she afterwards discovered that the description in that deed conveyed more than three times as much land as it was evident that all of the parties intended should be conveyed, she must have known of the mistake; and in such case she would necessarily be chargeable with notice thereof, and the right of the administrator to correct a mistake.
In the case of Allen v. Kersey (1885), 104 Ind. 1, 4, it is said: “The recitals in the deed of conveyance as to the quantity of acres, or feet, which the land contains, which it assumes to convey, are not always conclusive as to the dimensions of the particular tract actually conveyed, or intended to be conveyed. In describing a tract of land, monuments have a controlling influence. Eext to monuments, courses and distances control. Lastly, in the absence of both monuments and courses and distances, the designated quantity will prevail. 3 Washburn, Real Prop. [4th ed.], p. 407; Simonton v. Thompson [1876], 55 Ind. 87. In determining how far the alleged quantity which a tract of land contains ought to control in its description, the context and other descriptive words ought to be taken into consideration.
In the case of Mettarr v. Allen (1894), 139 Ind. 644, it was held that persons are regarded as notified of whatever appears upon the face of deeds constituting their claim of title to land, and whatever is sufficient to put them upon inquiry is sufficient to charge them with whatever an ordinarily diligent search would have disclosed.
It was the duty of appellee Maggie Yansell to search the records as to the source of her title, and this, so far as the answer goes, she did not do, and, under the facts pleaded, she is not entitled to invoke the aid of a court of equity to grant her the relief she seeks.
12. Considering all of the allegations of the pleadings, as disclosed by the record before us,-we are of the opinion that they present a cause which appeals so strongly to equity that a trial should be had upon the merits, and the rights of the parties ought to be determined after hearing the evidence, and not upon demurrers to pleadings. Brown v. Brown (1894), 139 Ind. 653, 659.
Counsel have discussed other questions, but we do not deem it necessary to pass upon them.
The judgment is reversed, with direction to the trial court to sustain the demurrers to the second, third and fourth paragraphs of the separate answer of appellees, and also to the fifth paragraph of the separate answer of the appellee Maggie Vansell, and for other proceedings not inconsistent with this opinion.