76 Ind. 381 | Ind. | 1881
This action was commenced by the appellant in the Decatur Circuit Court, and the venue afterwards «hanged to the Rush Circuit Court.
The complaint of the appellants is in four paragraphs. In the first paragraph it is alleged that the appellant was the owner of certain real estate on the 17th day of December, 1871, and of a large amount of personal property; that on that day he executed a deed of assignment to Ralph Magee for said real estate for the benefit of his (appellant’s) creditors ; that at the same time a written agreement was executed by appellant and the appellees; that at the time of said assignment the appellant was in failing circumstances, and largely indebted to other persons, not parties to the aforesaid agreement, nor included within the list of creditors in the said assignment; and that the said assignment was made under the act concerning voluntary assignments approved March 5th, 1859. Copies of the deed of assignment and of the agreement executed contemporaneously with it are set forth. It is charged that the assignment was invalid for the following reasons : It was not made for the benefit of all of the creditors of the assignor; it was not accompanied by a schedule containing a particular enumeration of all the personal property assigned; the schedule was not sworn to before an officer authorized to administer oaths as required by the act aforesaid; that the deed was not properly acknowledged ; that the deed was not recorded according to law, and that the trustees did not take the oath required by statute. The second paragraph alleges, in substance, that
Demurrers were filed to these paragraphs, and were overruled as to all, except the first.
The questions which first require our attention are those arising upon the ruling sustaining appellees’ demurrer to the first paragraph of the complaint. Appellant contends that the transaction of December 17th, 1872, is a mere voluntary assignment, made under, and governed by, the act of March 5th, 1859, and that, as the provisions of that act were not complied with, the assignment must be deemed fraudulent and void. The contention of the appellees is, that the transaction is not to be treated as a voluntary assignment for the benefit of creditors, but as a contract of composition between a debtor and his creditors. Appellant’s argument rests entirely upon his assumption that the assignment was a voluntary one for the benefit of creditors; and, if this is groundless, the whole argument falls. The deed executed by the appellant and his wife is an ordinary warranty deed, in the statutory form, and names Ralph Magee and Dana,
The appellees united in an answer, to the first and third paragraphs, of which demurrers were overruled, and of this ruling appellant here complains. The first paragraph of the joint answer was addressed to the second, third and fourth paragraphs of the complaint. The allegations of the complaint, as to the former ownership of the real estate in controversy, and as to the execution of the deed and agreement as therein stated, are expressly admitted by the answer, and it is then alleged, in substance, that, when the said instruments were executed, the appellant was indebted iii a sum beyond the value of his property; that his property was in danger of being sacrificed by a forced sale; that, to avert this danger, and in consideration of the agreement of the creditors to allow appellant six hundred dollars of property, the said instruments were executed ; that Schultz and Magee entered upon the duties of their trust; that, in execution of such trust, they sold part of the real estate to the appellee Styers, who paid a valuable consideration therefor; that the said Schultz entered into a written agreement with said appellant, of which the following is a copy, to wit:
*387 “By this agreement it is witnessed that we bind ourselves unto Jacob F. Robbins, that, if he furnishes a man to advance for him thirty-six dollars per acre, and one hundred ■dollars within twenty days from this date, for the tract of land which Schultz and Magee have contracted to William ■Styers this day; and, also, to repay ten per cent, on the advances made by Styers, and will accept said Robbins’ mortgage for said sum, so that he, Robbins, may have an opportunity to pay it, and retain for two or three years its possession, the legal title thereto shall be conveyed to the said Robbins, so that he can mortgage it; but this loan must be secured, and the money ready for our use, within twenty dajss ■from this date, and it shall be ready at the time the title is ■demanded, and if said Robbins fails to furnish the person to ■do as indicated within said time, this contract shall be void, and said Robbins is to surrender possession according to his agreement heretofore made with Schultz and Magee.
“Dated at Greensburg, January 30th, 1874.
“Dana Schultz,
“J. E. Robbins,
“Jacob F. Robbins.”
That Styers took possession of the said real estate; that the purchase-money paid by Styers was all paid to the creditors of the appellant, without objection from Robbins ; that,' after the conveyance to Styers, some person, to appellees unknown, without their knowledge and consent, caused the deed executed to Magee and Schultz to be altered. It is also averred thafi the appellant had full knowledge of the payment by Styers of the purchase-money of said real estate. All of the allegations of the complaint charging fraud against the appellees are specifically denied. The facts set forth ■are pleaded as an estoppel.
It is contended by appellant’s counsel that this answer is bad for the reason that it does not aver that he did have knowledge that Scobey had delivered the deed to the
The delivery of the deed not having been such as gave it force, no title passed to the grantees, but it remained in the grantor. Unless the grantor, by his subsequent acts, had estopped himself to set up the invalidity of his first deed, he had an undoubted right to assail and overthrow it. If he. was ignorant of the material and important fact, that the deed had been delivered by the person to whom it was entrusted as an escrow, in violation of the trust and authority conferred, then the doctrine of estoppel can not justly apply to his subsequent conduct as developed by this answer:
Appellant was neither negligent nor imprudent in acting upon the belief that the condition imposed when the deed was placed in the hands of Scobey had been complied witli before its delivery to the grantees. The doctrine, that a person who does an act in excusable ignorance of a material fact is not thereby estopped, is founded in sound reason, and is well sustained by authority. In Fletcher v. Holmes, 25 Ind. 458, the subject here under discussion received a full and careful consideration, and it was said: “For the prevention of fraud, the law will hold a party to be concluded by his own act or admission. Surely this can have no application where everything was equally known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights sprung.”
It was said in the case of Long v. Anderson, 62 Ind. 537, that, “In the second and third paragraphs of his answer, the appellant has endeavored to defend against this latter breach only of the alleged warranty, by showing and stating certain facts which tended, if true, to estop the owner of said real
In The Greensburgh, etc., T. P. Co. v. Sidener, 40 Ind. 424, Buskirk, J., speaking for the court, said: “To constitute a valid estoppel by conduct, there must be knowledge on the part of the.party sought to be estopped, and a want of knowledge on the part of the party relying upon the estoppel. ’ ’
Of the many recent cases approving the doctrine of Fletcher v. Holmes, supra, we cite Lash v. Rendell, 72 Ind. 475; Hudson v. Densmore, 68 Ind. 391; Stewart v. Hartman, 46 Ind. 331.
Appellees, in replying to the argument of appellant’s ■counsel, assert that, as the appellant took an active part in negotiating the sale to Styers, the rule that knowledge must be shown does not apply, and we are referred, in support of this position, to Barnes v. McKay, 7 Ind. 301. It was said ■in that case, that “It may be that the appellant was ignorant of her legal rights in respect to the tract in controversy; ■but although she may have been ignorant of her rights, she «an not avoid the effect of her assui’ances to an innocent party that he might safely buy, for by them she assumed to know the facts on which her title rested.”
If this were conceded to be a correct statement of the law, it would yield appellant no support, for these, among other, reasons : 1st. The answer is by all of the defendants, the grantees in the original deed and the parties to the original contract. As to these grantees and parties, it is certainly not a good answer, for they were chargeable with notice of the transaction in which they were active participants. An answer, bad as to a part of the defendants unit
It is insisted by appellees, that, as the answer shows that Robbins received part of the first payment of $1,000 made-by Styers, the purchaser, he is estopped to question the title of such purchaser. The allegation upon this point is as follows : ‘ ‘And a portion of which one thousand dollars was, paid to said Jacob F. Robbins.” The pleader does not aver how much of the money was paid appellant; whether it was, one cent or one dollar, the court is not informed. In setting up the defence of estoppel, facts must be stated with fullness and certainty. In Lash v. Rendell, supra, the-court quoted and approved Lord Coke’s famous saying: “Every estoppel, because it concludeth a man to allege the-truth, must be certain to every intent, and not to be taken by argument or inference.” A party who relies upon an estoppel should, in his pleading, state all material facts, and so state them that the court can decide, as a matter of law, that they conclude the adverse party from setting up the truth. Under the code, the defence of estoppel must be specially pleaded, and so pleaded as to constitute a complete bar to the cause of action stated in the Complaint. Wood v. Ostram, 29 Ind. 177: Pomeroy Rem., sec. 712.
The court could not, in an ordinary case, presume, under the allegations of this answer, that anything more than a.
The inference in cases of estoppel is against, and strongly against, the party who pleads it. He must state all the elements which are necessary to create avail'd estoppel. Nothing can be supplied by intendment in favor of an alleged estoppel. A defendant who seeks to shut out the truth must plead all the material facts with certainty. In such cases it is the pleader’s duty to keep in mind the rules of pleading applicable to such defences, and to frame his answer in accordance with their requirements, strict and exacting though they are.
Another allegation of the paragraph of the answer under mention requires brief notice, and that is the following: “That the plaintiff, with full knowledge that the deed and contract mentioned in the complaint had been delivered to Schultz and Magee, rented of said Schultz and Magee said lands and accepted the same as their tenants for one year.” The infirmity in this branch of the answer is, that it neither denies nor avoids the charge of the complaint, that the deed was delivered in violation of the condition upon which it was placed in Scobey’s custody. The answer confesses, but does not avoid. The question was not as to whether there was a delivery to the grantees,but whether it was a valid one.
The third paragraph of the joint answer professes to answer the third paragraph of the complaint. The purpose of the pleader evidently was to state such facts as entitled the appellees to affirmative relief, by securing the reformation of
With the first branch of Professor Greenleaf’s proposition we have here no direct concern, but the latter, if correct, exerts an important influence upon the ease. If all remedy upon an altered deed is, as the author quoted says, utterly gone, then the appellees clearly had no foundation upon which to rest their claim to the affirmative relief sought by the answer under examination. The case upon which appellees so confidently rely, Woods v. Hildebrand, 46 Mo. 284, S. C., 2 Am. R. 513, recognizes the doctrine that a deed which has been fraudulently altered will not furnish ground for invoking judicial aid. Cases are there cited which expressly declare this doctrine, among them the following: Withers v. Atkinson, 1 Watts, 236; Chesley v. Frost, 1 N. H. 145; Alexander v. Hickox, 34 Mo. 496.
The answer is without any support at all, unless the deéd be deemed to entitle the appellees to the relief sought. To permit the appellees to secure the relief sought would be to furnish them a remedy upon an instrument which they themselves had fraudulently altered, and would be allowing them to enforce a right dependent entirely upon a contract which by their own wrongful act they had so changed as to make it essentially different from that which the parties actually executed. It has been often held that no action or defence can be maintained upon an instrument which has been altered in a material part, and, upon the same principle, it must be held that no affirmative defence can be maintained upon a deed which has been fraudulently altered, by the party by whom the alteration was made. Dietz v. Harder, 72 Ind. 208; Hamilton v. Wood, 70 Ind. 306; McCoy v. Lockwood, 71 Ind. 319; Collier v. Waugh, 64 Ind. 456; Schnewind v. Hacket, 54 Ind. 248.
We may remark, by the way, that there are very many cases to the effect, that an}r fraudulent alteration of a deed
In addition to the joint answers filed by the appellees, separate answers were also filed by Styers and Magee. It is insisted that the court erred in overruling the demurrer to the second paragraph of the separate answer of Styers. This paragraph alleges that a mistake was made in describing the lands intended to be conveyed by the scrivener who drew the deed executed by appellant to Magee and Schultz; that this mistake was afterward corrected by and with the consent of the appellant; and facts are also pleaded clearly showing that there was a mistake in the description, which the appellee Styers was entitled to have corrected. It is also alleged that Robbins knew of the sale made by Magee and Schultz to him, Styers; that thereafter the appellant contracted to buy said land within twenty days from the date of said contract, at the same price at which it had been sold to Styers; that said Robbins endeavored to borrow money to pay for said land; that he failed to do so ; that thereafter the said Styers paid in full for said land, without any knowledge' that said deed had been delivered as an escrow, and without any knowledge that any alteration had been made in said deed ; and that the said Magee and Schultz, with the knowledge and consent of the said Robbins, conveyed the land to him, Styers, and put him in possession thereof. The answer ought, perhaps, to be made more certain and definite, but we think there is enough in it to show that Styers purchased in good faith and for a valuable consideration the land, in controversy, and that the appellant confirmed and ratified, so far as concerned' Styers, the delivery of the deed by Scobey. It certainly does show that appellant caused the description in the deed to be corrected, and that, by his active participation in the transaction, he induced Styers to believe that Schultz and Magee had a perfect
The facts stated in this answer are not only essentially different from those stated in the joint answer of all the appellees, but the answer is the separate one of a bona fide purchaser acting upon the conduct of appellant; whereas, in the joint answer, there were included the grantees, who were expressly charged with the fraudulent alteration of the deed, and with wrongfully procuring its surrender to them. The facts stated in this paragraph of Styers’- answer shows not only that the appellant enabled the person to whom the deed was entrusted to do that which appellant now denounces as, a fraud, but it also shows that he actively assisted in inspiring the purchaser with a belief that such person at the time his, attorney and agent, and the grantees to whom the deed was delivered, were doing that which he, appellant, desired and authorized them to do.
Of the many points argued upon the error assigned upon the ruling denying a new trial, we deem it necessary to consider only a few. The appellant complains of this instruction : “It was competent for the plaintiffs to prescribe the terms on which they would execute and deliver the deed to, Magee and Schultz; but, if they agreed on terms with the creditors and trustees, and if these were performed by the-latter, and the deed was then delivered by Scobey, it took effect as a conveyance, although secret instructions may have-been given to Scobey to hold the deed until other conditions, never suggested to the creditors or trustees by the plaintiffs or Scobey, should be performed.”
The complaint is groundless. Secret instructions will not affect third persons, who rely upon the open conduct and
The second instruction told the jury that the written agreement should be deemed to express all the conditions upon which the deed was to take effect, unless appellees had .shown some mistake therein. This was right. Where parties -commit their agreement to writing, the written instrument should be held to correctly express all the terms of the contract, unless a mistake therein be shown by the party alleging that the agreement is not properly expressed by the writing.
The third instruction declared that, if there was no mistake in drafting the written instrument, then the appellant would have no right to defeat the appellees by showing that he had given Scobey private instructions not to deliver the -deed until all the creditors had signed the agreement. This instruction was properly given. If the written instrument ■correctly expressed the contract of the parties, appellant could not render its terms ineffective by oral instructions privately given his attorney and agent, for such the evidence shows Scobey to have been. In subsequent instructions, the jury were clearly and fully informed as to the effect of a mistake in the written instrument, and the question, whether there was or was not a mistake, was properly submitted to the jury as a question of fact, in very clear and accurate language.
We do not find it necessary to prolong this opinion by ■discussing, in detail, the instructions given by the court upon the subject of a mistake in the description of the property conveyed by appellant, nor to give to the instructions asked by appellant upon this subject, more than a brief general notice. A careful examination has satisfied us that the instructions asked by the appellant, and refused by the court, are not correct statements of the law; while those given by the court correctly express the principles of law governing
In several of the instructions asked by appellant, the doctrine is affirmed, that, unless he had notice of the delivery of the deed by Seobey, he was not estopped by acts subsequently performed by him. We think that the court did not err in refusing these instructions ; for the same principle is declared, very clearly and fully, in the instructions given by the court. Knowledge, as we have already said in discussing the pleadings, is often a matter of vital importance, where an estoppel is relied upon as constituting a defence, or as creating aright of action. The court, in stating the law to' the jury in its own instructions, did not omit to direct attention to this important element of an estoppel in pais.
We have not discussed many questions argued by counsel, for the reason that, for the errors pointed out, there must be a reversal, and it is not likely that these questions will again arise.
Judgment reversed.