Carver v. Carver

• Decision Date: 16 October 1884
• Docket Number: 8167
• Citation: 97 Ind. 497
• Parties: Carver et al. v. Carver
• Court: Indiana Supreme Court

97 Ind. 497

Carver et al. v. Carver

No. 8167

Supreme Court of Indiana

October 16, 1884

From the Madison Circuit Court.

The judgment is affirmed, with costs.

M. S Robinson and J. W. Lovett, for appellants.

H. D Thompson, T. B. Orr and W. March, for appellee.

OPINION

Zollars J.

Action by appellee in relation to real estate; verdict in her favor, and over a motion for a new trial and other motions, judgment upon the verdict that she is the owner, and entitled to the possession, of the undivided one-third of the real estate, and for $ 125 against appellant William Carver for the detention thereof.

Many alleged errors are argued as causes for a reversal of the judgment. The first is, that the court below erred in overruling the demurrer to the complaint, which is in two paragraphs.

It is contended that the defendants to the separate paragraphs are not the same, except, perhaps, William Carver. Each paragraph does not state a cause of action against all of the appellants. The complaint appears to have been amended. What the amendment was, does not appear, as the amended complaint only is set out in the record. The defendants to each paragraph are not separately set out. As we find the cause entitled in the record, all of the appellants are set out as defendants. All through the proceedings they were all treated as defendants. It was so in the demurrer, answers, motions for a venire de novo, for a new trial, and other motions. We can not say, therefore, that the entitling of the cause was the unauthorized work of the clerk in making up the record. That all of appellants were not mentioned in the body of the complaint, or that each paragraph does not state a cause of action against them all, does not show that they were not all parties defendants. They must all be treated as having been parties defendants in the trial court. Whether a cause of action is stated against all, is another question. There are twenty-four persons named as defendants, who are appellants here. In the first paragraph of the complaint, four of the appellants are specially named. As against these the pleader assumed to state a cause of action. As to those not so named there was no attempt to state a cause of action. In the second paragraph, fifteen of the defendants are specially named. As against these again, there was an attempt to state a cause of action, and again, as to those not named, there was no such attempt. The defendants thus specially named in the different paragraphs are not the same, except William Carver, and, possibly, one of the Johnsons.

The averments of the paragraphs are such as to make it certain that neither states a cause of action against any of the defendants except those specially named therein. Had the demurrer been several as to the defendants, it should have been sustained to each paragraph, as to all of them not so specially named. If, on the other hand, the demurrer was joint as to the defendants, and the paragraphs state a cause of action against any one of them, it was properly overruled. Teter v. Hinders, 19 Ind. 93; Eichbredt v. Angerman, 80 Ind. 208; Axtel v. Chase, 83 Ind. 546; Campbell v. Martin, 87 Ind. 577; Trisler v. Trisler, 38 Ind. 282; Bennett v. Preston, 17 Ind. 291.

The demurrer filed in this case is as follows:

"The defendants separately and severally demur to the first and second paragraphs of the plaintiff's complaint, and for cause of demurrer say that neither of sad paragraphs states facts sufficient to constitute a cause of action against them."

This demurrer, we think, is separate as to each paragraph of the complaint, but clearly joint as to the parties. The words "separately and severally" can not be applied both to the separate paragraphs and also to the defendants; we think they apply only to the separate paragraphs. Such would seem to have been the intent of the pleader. The "defendants" demur, and the conclusion of the demurrer is that a cause of action is not stated against "them." The demurrer is the same as if written, the defendants demur to the first and second paragraphs of the complaint, separately and severally, and for cause, state that neither of said paragraphs states facts sufficient to constitute a cause of action against them.

This brings us to the question of the sufficiency of the paragraphs of the complaint, as against any of the defendants.

As to the first, it is sufficient to say, in this connection, that whether or not it states a cause of action against all of the defendants, or all of those therein specially named, it at least makes a case against William Carver for the recovery of real estate. As to him it is in strict compliance with the requirements of section 1054, R. S. 1881, which is the same as section 595, code of 1852. The paragraph is, therefore, sufficient to withstand the joint demurrer by all of the defendants.

The second paragraph is quite lengthy, tedious, and uncertain in detail. The substance of it is as follows: In 1853, appellee's father gave to her lands in Rush county, subject to a small encumbrance, and conveyed it to a trustee, to be held by him until her husband should pay off the encumbrance, when the trustee should convey it to her. In 1854, the trustee, with her consent, sold the land for enough to pay off the encumbrance and $ 2,500 additional. In the same year, her husband, Ira Carver, and appellant William Carver, purchased land in Henry county, and paid for the same with appellee's $ 2,500. With her consent, the money was thus applied as an investment for her. The land in Henry county having been sold, appellee's husband, acting as her agent, for her use and benefit, purchased the land in controversy, and paid for the same with the proceeds of the Henry county land. By mistake, the deed for this land was not made to appellee, but to her husband. In 1857, her husband was of weak mind and financially embarrassed. Appellant William Carver, with knowledge of the husband's condition, mentally and financially, and that appellee's money paid for the land, and with the intent to cheat and defraud her out of the land, confederated with the husband, and a justice of the peace, to get her to sign a deed to him, William Carver. To accomplish this, they and each of them, and especially William Carver, represented to her that the husband was overwhelmingly in debt, and that his creditors were about to arrest and imprison him; that he, William Carver, was security for her husband for a large amount; that if she would execute to him a mortgage upon the land to secure him, he would save her husband from arrest and imprisonment, and save the land for her and her children, and that in no other way could this be done. Believing and relying upon these representations, all of which were false, and known to the parties to be false, she signed what they told her was a mortgage. She never made any deed to William Carver, and the deed under which he claims to hold the land is as to her a forgery. During all this time she was the wife of Ira Carver, and continued to be and to live with him as such until 1875, when he died. She had no knowledge of the deed until 1870.

It is averred that William Carver has had possession of the land for the last fifteen years, the rental value of which was five hundred dollars per year; that he has laid off a portion of it into lots as an addition to the town of Alexandria, and that certain named parties claim and pretend to own some of the lots. The prayer of the paragraph is that the deed be declared fraudulent and void; that Carver be compelled to reconvey, or that a conveyance be made by a commissioner; that she may recover damages "in the premises," and for all other proper relief. In this summary of the paragraph we have used the name of William Carver, as the defendant against whom the paragraph is specially directed. His name, however, is not mentioned, except where it is averred that she "never made a conveyance in fee simple to said William Carver," and that after the pretended conveyance to him, the "said William Carver" laid off a portion of the land into town lots, etc. Aside from these instances the averments are "the said defendant."

The paragraph seems to have been carelessly and loosely drawn, but taking its several averments together we think it sufficiently appears that William Carver is the "said defendant." William Carver is the defendant last named in the first paragraph. The "said defendant," in the opening and subsequent portions of the second, was doubtless meant to refer to him as the antecedent. It is the well settled doctrine that each paragraph must be sufficient of itself, and that it can not be made good by reference to another paragraph for substantial averments. It has been held, however, and we think correctly, that it is not necessary to repeat the names of the parties in each subsequent paragraph, and that a reference may be made to them as the said defendant or defendants, or the said plaintiff or plaintiffs. Thompson v. Edwards, 85 Ind. 414. As William Carver is the defendant last specially named in the first paragraph, we think that "the said defendant" may be held to relate to him as the immediate antecedent.

As against him the second paragraph states a cause of action. It shows that, as between appellee and her husband, she was the owner of the land, although he held the legal title. Here again the paragraph is somewhat indefinite and argumentative but sufficiently shows that appellant Carver did not purchase the land, or have any substantial interest in it; that under the false pretence of taking a mortgage to save the land to appellee, and to save her husband from arrest and imprisonment, he procured her signature to an instrument which is in form a deed, under...