41 Ind. App. 109 | Ind. Ct. App. | 1907
The appellant brought this suit in the court below for the partition of lot twenty-four in Smith & Carr’s addition to the city of Rushville, claiming to be the owner of the undivided one-third thereof by virtue of her marital right as the widow of John S. Radebaugh. The appellee filed several paragraphs of answer to this complaint, and also a cross-complaint. The cross-complaint alleged that on October 23, 1866, John S. Radebaugh was the husband of the plaintiff, and was at the time the owner of the lot in question, and that on said day said John S. Radebaugh and plaintiff sold and attempted to convey said real estate to James Goddard; that the deed therefor was duly signed and acknowledged by said John S. Radebaugh and Elizabeth Radebaugh, but that by the mutual mistake of the parties and of the notary who wrote the deed the notary failed' to insert the name of said Elizabeth in the body of said deed; that said deed and its acknowledgment are in the following words:
“This indenture witnesseth that John S. Radebaugh, of Rush county, in the State of Indiana, conveys and warrants to James Goddard, in Rush county, in the State of Indiana, for the sum of $2,000, the following real estate in Rush county, in the State of Indiana, to wit: Town lots No. 24 and No. 25 in Mathew Smith’s addition to the town of Rushville, and the south half of town lot No. 200 in West Rushville, as known and designated on the recorded plats of said additions to Rushville, and town lot No. 67 in Roland T. Carr’s addition to the town of Rushville, aforesaid. In witness whereof said John S. Radebaugh has hereunto set his hand and seal this 23d day of October, 1866.
[Seal.] John S. Radebaugh.
Her
[Seal.] Elizabeth (X) Radebaugh.
Marli
“State of Indiana, Rush County, ss:
“Before me, Hugh M. Spalding, a notary public in and for said county, this 23d day of October, 1866,*112 John S. Radebaugh acknowledged the execution of the annexed deed.
Witness my hand and notarial seal.
[Seal.] Hugh M. Spalding, notary public.
State of Indiana, Rush County, ss:
Before me, a notary public in and for said county, this-5th day of November, 1866, Elizabeth Radebaugh acknowledged the execution of the annexed deed.
Witness my hand and official seal.
[Seal.] John R. Mitchell, notary public.”
There is a prayer that the mistake be corrected, and the cross-complaint’s title to the premises quieted. Appellant’s demurrer to this cross-complaint was overruled and exceptions reserved and answers filed thereto; and issues formed on the complaint, answer, reply, cross-complaint and answer thereto, were submitted to the court for trial, with the request from appellant that the court make special findings and state conclusions of law thereon.
Special findings were made by the court and conclusions of law stated thereon favorable to appellee, to which conclusions of law the appellant at the proper time excepted, and a decree in favor of appellee on his cross-complaint was rendered. The error assigned and relied on by appellant for the reversal in this court is the overruling of appellant’s demurrer to the cross-complaint.
The special findings,'the conclusions of law thereon, and the judgment of the court in this case, being based solely on the appellee’s cross-complaint, and appellant’s demurrer for want of facts having been overruled thereto, the sufficiency of this pleading is necessarily presented by the record. The pleading shows upon its face that unless the cross-complainant is entitled to a reformation of the deed set forth in the cross-complaint, the demurrer thereto should have been sustained. The case of Parish v. Camplin (1894), 139 Ind. 1. is authority for the proposition that mistakes made in deeds
Appellant contends that the cross-complaint under consideration, if good at all, must be upheld upon the ground that it seeks a correction of the deed from appellant and her husband to Goddard; that, unless this deed is corrected, the answer affirmatively shows title to one-third of the premises in her. Upon this premise she contends that the cross-complaint is bad for the reason that it fails to allege a previous definite contract between the parties to the deed by which appellant and her husband were bound to execute to Goddard a deed for the real estate in dispute; that it fails to allege an intention on the part of the parties to the deed, or an intention on the part of the appellant to make any different deed from the one she did sign, and which is set out in the cross-complaint; that it fails to allege that the parties were ignorant of the alleged mistake, or, in other words, that the mistake was one of fact and not of law, and that it fails to show that Goddard was a purchaser for value.
This is well settled in the case of Parish v. Camplin, supra, where the court, in deciding a question of this precise nature, said: “If this was a mistake of law, a mistake as to the legal effect of the deed, it was such an one as was common to all the parties affected. ‘It has been said that whenever a mistake of law is common to all the parties, where they all act under the same misapprehension of the law, and make substantially the same mistake concerning it, this is a sufficient ground, without any other incidents, for the interposition of equity.’ 2 Pomeroy, Eq. Jurisp. (3d ed.), §846. # # * Equity requires an amendment of the writing that will make the contract what the parties supposed it was and intended it should be, although their mistake is one of law and not of fact.”
Section 385 Burns 1908, §376 R. S. 1881, provides: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed; with a view to substantial justice between the parties.”
Having in view these statutory rules for the construction of pleadings, we are to determine whether the cross-
8. The word “convey,” ordinarily speaking, means to transfer property from one person to another by means of a written instrument. When spoken with reference to real estate it imports an instrument under seal. Livermore v. Bagley (1807), 3 Mass. 487, 510; Abendroth v. Town of Greenwich (1860), 29 Conn. 356; Edelman v. Yeakel (1857), 27 Pa. St. 26; Anderson’s Law Dict., p. 254.
This being the plain import of the language used in the pleading, it fully answers all the objections that are urged against it.
If Radebaugh and his wife sold, for a valuable consideration, the premises described in the complaint, and mearit and
The judgment is affirmed.