Works v. State ex rel. Holland, No. 13,487

No. 13,487 | Ind. | Sep 25, 1889

Elliott, C. J.

This suit was brought to foreclose a school fund mortgage. The appellants insist that the court erred in overruling the motion to modify the decree, and in support of their position argue that as to two of the tracts of land embraced in the mortgage, the description is so defective as to be void. We can not yield to counsel’s argument. The office of a description is not to identify the land, but to furnish the means of identification, and this is done by the description here challenged. Rucker v. Steelman, 73 Ind. 396" court="Ind." date_filed="1881-05-15" href="https://app.midpage.ai/document/rucker-v-steelman-7043989?utm_source=webapp" opinion_id="7043989">73 Ind. 396. It furnishes the means of making the description certain, and that which can be made certain is certain.

Filed Sept. 25, 1889.

The controversy here is between the original parties, and directly affects the original instrument, and not subsequent proceedings founded upon it, so that we have no question as to the right to reform a deed or mortgage against a bona fide purchaser, nor have we any question as to the right to reform a sheriff’s deed.

The relator, who was, at the time the mortgage was prepared, the auditor of the county of Switzerland, was a competent witness. He was not a party in interest within the meaning of the statute prohibiting parties from testifying as witnesses where heirs or administrators are parties. He was a public officer, performing an official duty when the mortgage was executed, and it was as a public officer that he brought the suit as the relator of the State.

Judgment affirmed.