28 Ind. App. 277 | Ind. Ct. App. | 1902
Appellees commenced this action against the appellant for an alleged breach of the covenants of a warranty deed. They asked for damages, and that the purchase-money mortgage executed by them be canceled. Appellants by way of counterclaim sought to reform the deed and to reform and foreclose the mortgage. Upon the trial appellees were allowed damages' to the amount of $1,200, and appellant’s purchase-money mortgage was foreclosed for the difference between that sum and the amount due on the mortgage. Appellant has assigned error as follows: (1) The court erred in each conclusion of law. (2) The court erred in refusing to modify the third finding of fact. (3) The court erred in overruling appellant’s motion for a new trial. (4) The court erred in overruling appellant’s demurrer to the amended complaint. Appellees have assigned cross-errors in which the action of the trial court in overruling their demurrer to the amended counterclaim is questioned.
It is first contended that the appellee’s complaint does not state facts sufficient to constitute a cause of action. Briefly stated, the complaint avers, that, in consideration of the sum of $6,000, paid to appellants by appellees, Guy O. and Fuel J\I. Johnson, the appellants conveyed, by warranty deed, to said appellees a piece of ground with a front
Appellant contends that the special findings entitle her to a reformation of the deed, as asked for in her counterclaim. As we read the special findings, they sustain every material allegation of appellee’s complaint, and find against appellant, both as to the mutuality of the mistake in the description of the real estate and as to the mutuality of the mistake in the tract agreed' upon as averred in her counterclaim. The court, under the evidence, might have, and did in fact, find that there was no mistake in drawing the deed; that the land described in the deed was the land intended to be conveyed, and these findings take the case from the operation of the rale that the deed will be reformed where there has been a mutual mistake of the parties as to the description, in this, that the description inserted in the deed was not a description which would convey the lands which the parties
It having been found that there was no mistake in drawing the deed in question, all the parties thereto are simply held to the full measure of the contract as therein expressed. It seems to be settled law that a deed may be reformed, although both parties intend that the description of the land should be expressed in the words actually used, if both parties understood the boundaries to describe a smaller parcel identified by them than was, in fact, identified by the description used. Bush v. Hicks, supra, and cases cited; Gooder v. Riley, 153 Mass. 585, 28 N. E. 228, and cases cited. And when both parties to a conveyance have intended to describe a certain piece of land, identified by their senses and by .the words of their previous agreement, and have used words supposed by them to be apt for their purpose, but in fact described the agreed parcel and something more, the full purport of all their acts taken together is only to convey the parcel of land intended. Fuchs v. Treat, supra; Paine v. Woods, 108 Mass. 160; Waterman v. Johnson, 13 Pick. 261; Dembitz on Land Titles, §5, p. 32; Sparks v. Pittman, 51 Miss. 511.
It was under the law as above announced that appellant’s ’counterclaim was drawn. This counterclaim stated a cause of action against appellees, and if the court had found the necessary facts, from the evidence adduced, to sustain its material averments, the finding would not be disturbe,d. As we read - the evidence it is conflicting and unsatisfactory upon the material facts.
Counsel for the appellant contend that the trial court erred in admitting the evidence of E. A. Jones, a witness for appellees, who was permitted to testify, over the objection of appellant, that the land conveyed was of a certain
In Kellogg v. Malin, 62 Mo. 429, the syllabus writer said: “Evidence of plaintiffs object in purchasing is inadmissible in a suit for damages on the covenants against encumbrances on account of the existence of a right of way.” In Phillips v. Reichert, 17 Ind. 120, 79 Am. Dec. 463, the court say: “We think, in principle, the fact that land was bought for a particular purpose, which was known to the vendor, can make no difference in respect to the rule of damages for a breach of the covenants. The purpose for which the land was bought does not enter into the covenants. They bind the covenantor that he is seized of the land, and that he will warrant and defend the title, or in default thereof, that he will return the purchase money and interest;, or, if the title fail in part, that he will return a ratable proportion of the purchase money and interest.” It seems that the value of the whole tract conveyed at the time of the conveyance will be taken to be the true consideration which passed between the contracting parties, and if the grantee has been deprived of the use of any part of the premises, or evicted from any part thereof, the measure of his damages will be the value which that specific part of the land bore to the value of the whole land conveyed, and this relative value is to be ascertained with reference to the time of the conveyance, and not of the time of the trial. American, etc., Coal Co. v. Seitz, 101 Ind. 182. The courts of Massachusetts have established a
Questions similar to those asked the witness Jones were asked other witnesses for appellee, and were objected to by -counsel for appellant because, when the witnesses were asked to estimate the amount the premises were diminished in value by reason of the alleged breach of warranty, they were not confined to the date of the conveyance. This, we think, was an error which the record clearly shows resulted .in harm to appellant. Eor this error, the judgment of the trial court must be' reversed.
Judgment reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.