Adams v. Wheeler

• Decision Date: 21 February 1890
• Citation: 122 Ind. 251,23 N.E. 760
• Parties: Adams v. Wheeler et al.
• Court: Indiana Supreme Court

122 Ind. 251

23 N.E. 760

Adams

v.Wheeler et al.

Supreme Court of Indiana.

Feb. 21, 1890.

Appeal from circuit court, Marshall county; Isaiah Conner, Judge.

A. C. Capron and J. D. McLaren, for appellant. Samuel Parker, for appellees.

Mitchell, C. J.

This is an appeal from a judgment in favor of Wheeler against Adams, for the amount of a debt due the former from the Adams Chilled Plow Company, which debt it is alleged the latter assumed to pay as part of the purchase price of certain real estate conveyed to him by a trustee of the above-named company. The question for decision arises on the following facts: In 1882 the company above named, an incorporated body, executed a mortgage on its real estate to secure a loan of $6,000 made to it by Edward R. Wheeler. Subsequently the corporation, in the process of winding up its business, conveyed and transfered all its real and personal estate to a trustee, who, after due advertisement, sold the property at public auction, in March, 1883, to the defendant, Adams, for $2,550 cash in hand. The sale was made subject to the mortgage, in the presence of the mortgagee, but the purchaser never agreed to assume or pay the mortgage debt. It is alleged that after the sale the trustee caused a deed to be prepared, conveying the property to the purchaser, and that the scrivener in preparing the deed, without the knowledge or direction of the trustee, by mistake and inadvertence inserted a stipulation in the deed to the effect that the grantee assumed and agreed to pay the mortgage debt due to Wheeler. The trustee deposited the deed with the county recorder for record, without otherwise delivering it to the grantee, and without observing the stipulation so written therein, and the purchaser had no knowledge that the deed contained such a stipulation until after this suit was commenced. It is alleged that the sale was not made upon condition that the purchaser assume and pay the mortgage debt, and that the defendant never did agree to pay it, and that the stipulation was inserted in the deed by the mutual mistake of the parties thereto. Upon this state of facts, the defendant, by way of cross-complaint, asked that the deed be reformed.

Upon the foregoing facts it is very clear that the court was in error in holding the appellant personally liable, since it is conceded that he never agreed to pay the debt, and that the stipulation upon which the suit was predicated was inserted in the deed by the mutual mistake and inadvertence of the parties t...