95 Ind. 397 | Ind. | 1884
The complaint of the appellee is assailed by the assignment of errors for the first time, and the assault is sought to be made successful on the ground that the description of the real estate of which the appellee demands possession is insufficient.
Many defects in a complaint or declaration, which would be available on a demurrer, are cured by a verdict. The general rule upon this subject was thus stated in Shimer
In our opinion the general rule of which we have been speaking should apply to cases of defective descriptions. It certainly would be productive of great injustice to lay down a rule which would permit a defendant (as was done in this case) to go through two trials without suggesting any objection to the complaint, and then, for the first time, on appeal from the judgment on the last trial attack the complaint by the assignment of errors. We do not mean to hold that where the description is wholly insufficient, or so uncertain as not to be susceptible of correction by evidence that might have been given, under the general scope and theory of the case made by the complaint, the defect will not be available after verdict; but we do hold, that where the description is such as might have been corrected by evidence admissible under the general scope of the complaint, the defective description will be deemed healed by the verdict. We are, therefore, to ascertain whether the description set forth in the complaint is such as might have been made definite and certain by evidence which could have been given under the general scope of the complaint.
If the pleading could have been amended in the trial court, then the settled rule requires us to treat it as amended here. But however this may be, we feel quite sure that the imperfections in the description might have been remedied by evidence competent under the general scope of the complaint, and under the general rule we have stated the intendment is that such evidence was given.
It is by no means clear that the description is in itself so uncertain as to be void. The general rule is, “ that is sufficiently certain which can be made certain,” and here the means of making the description certain are supplied by the description itself. Counsel for appellant cite from 1 Works Pr., .section 390, the following: “ There must be such a description of the property, to constitute a cause of action, that the sheriff, with the assistance of a surveyor, can find the real estate and determine its boundaries.” We think this could readily be done in the present case by ascertaining what was conveyed to McKnight, for as soon as this was ascertained, then the boundaries of the land claimed by the appellee become fully known, for all the residue of the tract, which is very fully and accurately described, belongs to him.
It was held in Brown v. Anderson, 90 Ind. 93, that “A description of lands in a complaint for possession is sufficient if, by the aid of a competent surveyor and persons knowing the location of monuments mentioned as points in the boundaries, the lands can be found.” This we think a just and reasonable rule. The old rule, that the description in eject-
In Barclay v. Howell, 6 Peters, 498, a. more liberal rule than that we have stated was adopted and enforced. The description of the land in Flanigen v. City of Philadelphia, 51 Pa. St. 491, was by the street numbers, and it was held sufficient. In English v. Roche, 6 Ind. 62, it was said, in speaking of a complaint to foreclose a mortgage, that “ The desorption is sufficient whenever the land intended to be mortgaged can be ascertained by it.” The court, in the course of its opinion in Whittelsey v. Beall, 5 Blackf. 143, said: It was formerly considered an established principle, that the description of lands in an action of ejectment must be so certain as to enable the sheriff exactly to know7, without any information from the lessor of the plaintiff, of what to deliver possession. That maxim has been abolished, and it is now the practice for the sheriff to deliver possession of the premises recovered in that action, according to the directions of the claimant, who therein acts at his own peril.” It will be seen that the case cited lays down a very liberal rule, perhaps too liberal under the provisions of our code, but at all events it certainly does not sustain the appellant’s contention. The question in Hammond v. Stoy 85 Ind. 457, arose on a motion to make the complaint more specific, and that case is very plainly not in point here. In Halstead v. Board, etc., 56 Ind. 363, it was said: “ But where there is such a description in the mortgage as will rendér it operative to convey the property to the mortgagee, but not so definite as to enable a third person, in making sale of the property, (an officer for example,) to specify the exact boundaries, in such case, if the complaint upon the mortgage alleges the true boundaries, the'complaint will be good; * * * and, upon such proof, the court, in its decree, may specify the true boundaries, and the officer may sell and convey accord
Judgment affirmed.