67 Ind. 164 | Ind. | 1879
This was au. action by the appellee, against the appellant.
Judgment for the plaintiff below.
The only error complained of is the sustaining of a demurrer for want of sufficient facts to the amended fifth paragraph of answer.
In order to a proper understanding of the paragraph of answer mentioned, it will be necessary to state the-substance of the complaint.
The complaint alleged, “ that on the 25th day of October, 1870, the defendant, by his deed of conveyance, signed by himself and his wife, Jane A. Walton, a copy of which is filed herewith, conveyed and warranted to the plaintiff' the lands therein described; that the defendant had not, at the time of making said conveyance, any title whatever in the lands in said deed described, nor has he at any time since acquired any title whatever to said lands; that plaintiff has never been in possession'of said, lands, nor enjoyed any benefit therefrom whatever ; that said defendant intended, by said conveyance, to convey to the plaintiff the following described lands in said county and State, to wit:” (Here certain lands are described.) “ That it urns supposed, at the time of said conveyance, by both plaintiff' anch defendant, that the tract last above described was covered by said conveyance; that, upon the execution of said conveyance, the defendant put the plaintiff in possession of the last above described tract; that,
The paragraph of answer in question is as follows :
“ And, for amended 5th paragraph of answer to the complaint herein, this defendant says that the lands described in the plaintiff’s complaint, as being the lands sold by defendant to plaintiff', and intended to be conveyed by
It is plain from the allegations of the complaint and the paragraph of answer above set out, that the plaintiff' bought, and the defendant sold to him, the land from which he was evicted; but, by a mutual mistake, the land was misdescribed in the deed from the defendant to the plaintiff, as it had been in the proceedings of the administrator and the deed from him to Wells, and in that from Wells to the defendant. The deed from the defendant to the plaintiff might have been reformed so as to describe the land actually sold and intended to be conveyed; and, for the purposes of the decision of the question involved, it may be regarded as reformed, or as having truly described the land sold.
But it would seem that the record of the proceedings of the administrator can not be reformed, and the mistake in the description of the land, running through those proceedings, corrected. See Angle v. Speer, 66 Ind. 488.
It does not, however, follow, that because the mistake in the administrator’s proceeding can not be corrected, the paragraph of answer does not state a good defence to the action. On the contrary, we are of opinion that it does.
The complaint alleges, to be sure, that the defendant was a party to the actions brought by Jane Dixon and William H. Lawrence, against the plaintiff, for the recovery of the land. But the answer in question alleges that the plaintiff' gave the defendant no notice whatever of the pendency of said actions, and that the defendant was not a party thereto, nor was he a party to the partition proceedings, nor in any other proceedings had in any court in relation to said lands. These allegations of the answer are repugnant to the allegation mentioned of the complaint. and are admitted by the demurrer to be true, and must be so regarded in determining the sufficiency of the answer.
The question arises, then, whether, upon the facts stated in the answer, Dixon and Lawrence rightfully recovered the land.
There can be no doubt that the land sold by the defendant to the plaintiff", and intended to be conveyed, was the land really sold by the administrator to Wells, and by Wells to the defendant, the mistake being, notin the identity, but in the description, thereof.
We pass over the question as to the effect of the receipt, by the heirs of Joshua IT. Shepherd, of the residue of the purchase-money arising from the sale of the land by the administrator, after payment of the debts and expenses. See, upon this point, Roror Judicial Sales, 2d ed., sec. 469.
We have a statute on the subject of occupying claimants, which is entirely applicable to the case before us, and decisive of the rights of the parties. By that statute, it is provided that “ Whenever any land sold by an executor, administrator, guardian, sheriff" or administrator of court, is afterwards recovered in the proper action by any person originally liable, or in whose hands the land would be liable to pay the demand or judgment for which, or for whose benefit the land was sold, or any one claiming under such person, the plaintiff shall not be entitled to the possession of the land until he has refunded the purchase-money, with interest, deducting therefrom the value of the use, rents and profits, and injury done by waste and cultivation, to be assessed under the provisions of this act.” 2 R. S. 1876, p. 257, sec. 625.
If the proper steps had been taken by the plaintiff, Dixon and Lawrence could not have recovered the land from him without refunding to him the $885 and the interest thereon, for which the land was sold by the administrator, subject to the deductions mentioned in the statute. The plaintiff w7as entitled to this money, as he had acquired the rights of Wells, the original purchaser from the administrator.
As the plaintiff’did not notify the defendant of the pendency of the suits brought against him for the recovery of the land, and as the defendant was not a party thereto, it was clearly the duty of the plaintiff to have brought forward his claim for the refunding of the purchase-money paid bj7 Wells to the administrator, before being ejected from the land; and, having failed to do so, he can not now recover the amount of the purchase-money paid by him to the defendant.
The amount of $885, with interest up to the time of the eviction, is a considerably larger sum than the amount claimed in the complaint to have been paid by the plaintiff to the defendant upon the land, with interest up to the time of bringing this action.
For these reasons, we are of opinion that the court below erred in sustaining the demurrer to the paragraph of answer.
The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with Shis opinion.