37 Ind. 138 | Ind. | 1871
The facts alleged in the complaint in this case are as follows: That Comley, being the owner in fee simple of certain real estate, described in th¿ complaint, and in the possession thereof, sold the same to Benjamin Abbott, and put him in possession thereof, giving him a title bond, and Abbott paid for the land; that by some mistake, the land was described in the bond as the south-west quarter of the south-east'quarter, instead of the south-west quarter of the north-east quarter, of section thirty-four, township four, range eleven east; that this mistake was carried into the deed from Comley to Abbott; that said Abbott, before he had received his deed from Comley, sold ten acres of the land to one Danner, and gave him a title bond therefor, and put him in possession, and Danner fully paid Abbott for said ten acres. In describing the ten acres in the title bond to Danner, the same mistake was made as to the forty acre tract embracing the ten acres, as in the title bond and deed from Comley to Abbott. Danner, after having paid for the ten acres, assigned his title bond to one James Brown, and put him in possession; that after Comley had conveyed said land to Abbott, he, at the request of said James Brown, conveyed said ten acres to Mary Brown, the wife of said James Brown, by the same erroneous description; that at the time
The defendants, Joseph Abbott and Richardson, the death of Benjamin Abbott having been suggested by the plaintiff, demurred to the complaint on the grounds of defect of parties defendants, and because the facts stated are not sufficient to constitute a cause of action. This demurrer, as to the first ground, was overruled, and as to the second, it was sustained, and the question reserved. This action of the court presents the question, and the only question for our consideration. It is quite evident that the facts alleged plead very strongly for the interposition of judicial authority in the correction of the mistake in the description of the land. Possession of the land intended, in every instance, was given to the party purchasing, and a full consideration was paid. The difficulty arises out of the facts that the judgment directing the sale of the ten acres of land, and the advertisement, appraisement, if any was made, and the salé and conveyance thereof by the sheriff each designated and described another piece or tract of land than that intended, and of which possession was taken. Such mistakes in the description of real estate between private persons, in bonds, mortgages, deeds, etc., áre freely corrected by the courts. But when the sale is judicial, difficulties arise which at once cause a court to hesitate, seek for reasons, and search for precedents. The learned counsel for the appellant, who not only knows the law, but, what is almost equally important, knows where to find it, has not referred us to any authority for the position assumed by him.
If the mistake was in the deed only, perhaps it might be corrected in this way. Johns v. DeRome, 5 Blackf. 421. But if we should correct .the deed, and attempt to vest in the plaintiff the title to the tract of land which he claims, we should give him land which was not ordered by the court to be sold, nor advertised by the sheriff, nor sold by him,
The judgment is affirmed, with costs,