70 Ind. 554 | Ind. | 1880
— This case is now before this court for the second time. The opinion and judgment of this court, on the former appeal, are reported under the title of Toops v. Snyder, 47 Ind. 91.
It is a suit of the appellant against the appellees, to recover the possession of a certain parcel of real estate, particularly described, in Clinton county, Indiana, containing two and two-thirds acres. The appellant’s complaint was in the usual statutory form, in such cases, and need not be further noticed. To this complaint the appellees answered in a single paragraph, by way of cross complaint, to which the appellant’s demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court, and his exception was duly saved to this decision. Thereupon the appellant answered said cross complaint, by a general denial thereof. Other pleadings were filed by the parties respectively, but, as no question arises thereon for our decision, we need not further notice them in this opinion. The cause, having been put at issue, was tried by a jury, and a general verdict was returned for the appellant for a part only, particularly specified, of the real estate described in his complaint, and assessing his damages in the sum of twenty-seven dollars. "With their general verdict, the jury also returned
The appellant’s motion for a new trial having been overruled by the court, and his exception entered to this ruling, he appealed from the judgment below to this court, and has here assigned, as errors, the following decisions of the circuit court:
1. In overruling his demurrer to the appellees’ cross complaint;
2. In overruling his motion for a new trial ; and,
3. In rendering the judgment appealed from in this case.
1. In their cross complaint, the appellees John Snyder,
•William V. Snyder and Garrett D. Snyder jointly alleged, in substance, that on the — day of March, 1864, the appellants Taylor Toops and Joseph Toops were the owners in fee-simple and tenants in common of the south-west quarter- of section 17, in township 21 north, of range 1 west, except such part of said quarter section as lay south of the intersection of the New Castle state road with the Frankfort and Crawfordsville state road, and were also such owners and tenants of five acres, more or less, in a triangular form, in the north-west corner of section 20, in the same township and range, being so much of said section as lay north of said last named state road, all of said real estate being in Clinton couuty, Indiana; that, at the time last mentioned, the appellant and said Joseph Toops agreed to make partition of said real estate between themselves, in such manner that each of them should have an equal quantity thereof; that, in pursuance of said agreement and for the purpose of carrying it out, the said Joseph Toops, on the 14th day of March, 1864, executed to the appellant his quitclaim deed, by which he
To this cross complaint the appellant’s demurrer for the want of sufficient facts therein, as we have .already said, was overruled by the court. The appellant’s counsel has devoted a large portion of his brief of this cause to a criticism of this. cross complaint, and to the discussion of the alleged insufficiency of its allegations of fact to constitute a. good cross complaint. We have given the appellant the benefit of a full summary of the material allegations of this cross complaint; and while we deem it unnecessary for us to point out his objections to this pleading, orto answer his arguments against its sufficiency, ■under the view we shall take of the case, yet we may say generally, that,in our opinion, the cross complaint stated facts sufficient to withstand the demurrer thereto.
The object of the cross complaint was to obtain the correction of an alleged mistake in the deed from Joseph Toops to .the appellant, under which the latter had become vested with‘the legal title to the two and two-thirds acres of' land, for the. recovery of which he had
Applying this doctrine to the case at bar, it seems to us that the evidence adduced upon the trial utterly failed to show such a mistake in any of the deeds sought to be reformed, as a court of equity would or ought to afford any relief for or against, at the suit of the cross complainants. Joseph Toops and the appellant -were each of them witnesses on the trial of the cause; and it is manifest, we think, from the testimony of each of them, that there was no such mistake in either of their partition deeds, as either of the parties, or the grantees near or remote of either, could obtain relief against, in a coui’t of equity. It appeared from the evidence of each of the said parties, that each of them could read and write, and that their partition deeds were read to them before they executed the deeds. It is very clear from their testimony, we think, that they did not mistake the con
It is very clear, also, from the evidence in the record, that the alleged mistake in the deed from Joseph Toops to Amos ITeavilon is a mistake, from the effects of which the cross complainants can obtain no relief in a court of equity. Heavilon testified as a witness, on the trial of the case, as follows “I examined Joseph’s deed to me, and knew what was in it before I accepted it.” It is manifest from this evidence, that, if there was any mistake in Heavilon’s deed, it was a mistake only as to its effect, and not as to its contents; and against such a mistake, as we have seen, equity affords no relief.
In regard to the alleged mistakes in the two Snyder deeds, there was no evidence whatever introduced on the trial.
Eor the reasons given, we are of the opinion that the verdict of the jury was not sustained by, but was contrary to, the evidence in the record, and that for this cause the appellant’s motion for a new trial ought to have been sustained.
The judgment is reversed, at the appellees’ costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.