Tennyson v. Fleener, 45 Ind. App. 50

Tennyson v. Fleener

45 Ind. App. 50 | Ind. Ct. App. | 1909

Roby, J.

1. The court upon request made a special finding of facts and stated conclusions of law thereon. The facts found are, in substance, that the appellant who was defendant below, contracted to sell to appellees his farm, except six acres off the east end thereof, and that by mutual mistake of the parties the description contained in the deed executed in consummation of said contract included land not owned by appellant and not sold or intended to be sold to appellees. The land included in the boundaries set out in said deed and not owned by appellant or taken into possession by appellee was of the value of $450. Upon these facts the court stated two conclusions: (1) “That, by reason of the breach of the covenants contained in said deed, * * * the plaintiffs are entitled to damages in the sum of $450; (2) that by reason of the mutual mistake of the grantors and the grantees, and the mistake of the scrivener in the description inserted in said deed, the defendant is entitled to have the deed reformed to describe the following real estate [describing the land actually sold].” Upon these conclusions the court rendered judgment against appellant for $450, and in his favor for the reformation of said deed. The appellant excepted to the first conclusion of law and assigns error by the court in said conclusion. The second conclusion might logically have been first stated. The deed as reformed is the deed by reference to which the suit for breach of covenant must be determined.

2. The facts found show appellees to be without any basis for the recovery of damages.

3. It is ingenuously argued that the complaint having been answered by a general denial only, the issue thus made did not permit a reformation to defeat the claim for damages. Reformation was decreed upon an af*52firmative pleading filed in the case, and such reformation rendered it impossible for appellees to establish their case as against a general denial.

The judgment is reversed and the cause is remanded, with instructions to restate the first conclusion of law in accordance herewith.