Wright v. McCormick, 22 Iowa 545

Wright v. McCormick

22 Iowa 545 | Iowa | 1867

Lowe, Oh. J.

1. conveyance : breach of contract. The demurrer admits the material facts' set out in the plaintiff’s petition. These, properly analyzed,do show that the plaintiff has suffered, and is nr* • * * o t • , suffering, an injury irom the misrepresentation of the defendant in the transaction referred to, or from the mistaken or careless acts of the defendant, for which he should have a remedy; if so, then he has a cause of action, either in a court of law or in a court of equity. If it is true the defendant sold to the plaintiff, for a large consideration, a flouring mill and other improvements thereunto belonging, and in making the conveyance deeded lands’ on which these improvements are not situated, by mistake or carelessness, the plaintiff is entitled *548to have this mistake corrected, and at the same time to have awarded to him such compensation for the injury which he has sustained thereby, as shall be meet and just under the circumstances.

The plaintiff makes the deed which he received from the defendant an exhibit to the petition. It contains a recital that the said mill is on the premises therein conveyed. It is now alleged that, in fact, the lands therein described do not embrace the said mill. This deed contains all the usual covenants. This shows an intention on the part of the defendant to warrant the title to the mill. If the deed had embraced the mill, and plaintiff was obliged to clear off a valid pre-existing lien, or to buy in an outstanding paramount title, this covenant would give him a remedy over against the defendants for the proper amount. In equity, plaintiff’s rights are the same as if he had received such a deed. If the title to the mill was in defendant, plaintiff’s remedy would be in equity for a deed from the defendant, and when its jurisdiction once attached it would retain the cause for complete relief, and award such damages in the premises as should rightfully be established therein.

2. Practice: mistake in proceeding. If the facts stated, show that the action should have been one in equity instead of law, or vice versa, the petition would not be demurrable on that account. JN or would it be if the facts show a ground of action, but are imperfectly and vaguely stated. In this event a motion for a more specific statement is the appropriate remedy.

In view of the peculiar character of the petition in this case, its want of clearness, etc., we will remand the cause, with leave to the plaintiff to amend his pleadings, and to change his action into equity if he shall be so advised.

Reversed.