Comstock v. Coon

• Decision Date: 19 December 1893
• Docket Number: 16,507
• Citation: 35 N.E. 909,135 Ind. 640
• Parties: Comstock et al. v. Coon et al
• Court: Indiana Supreme Court

35 N.E. 909

135 Ind. 640

Comstock et al. v. Coon et al

No. 16,507

Supreme Court of Indiana

December 19, 1893

From the Grant Circuit Court.

The judgment is affirmed.

G Harvey, A. De Wolf and E. Y. Comstock, for appellants.

A. E Steele, for appellees.

OPINION

McCabe, J.

This was a suit by the appellee Margaret Coon, against the appellants and her co-appellees, to reform two deeds, one executed by her co-appellee Michael Coon, and herself, as his wife, purporting to convey certain real estate to her co-appellee George Coon, and the other executed by the latter and his wife, purporting to convey the same real estate to appellee Margaret, and to enjoin a sale on execution levied on said real estate as the property of appellee Michael Coon, by appellant Sanders, as sheriff, in favor of appellant Comstock, to satisfy a judgment in his favor against said Michael.

Appellants, Comstock and Sanders, answered by a general denial, and the other defendants were defaulted.

Trial by the court, finding for appellee Margaret Coon, and against all the defendants below, upon which she had judgment.

The assignment of errors calls in question the sufficiency of the facts stated in the complaint to constitute a cause of action, and also questions the action of the trial court in overruling the motion for a new trial.

We are entirely without the aid of either argument or a brief on behalf of the appellee. This is a very serious dereliction of duty on the part of the appellee and her counsel, who recovered judgment below. It imposes needless labor on this court, simply because the presumption in favor of the correctness of the judgment below forbids us from treating the failure to brief the case for appellee as a default and confession of the errors assigned. This needless labor the person recovering judgment below has no right to impose on this court, and in such cases they must not complain if we fail to give that painstaking research to sustain the judgment below, as we might with the aid of some sort of a brief or argument.

The substance of the complaint is that on the 28th day of August, 1882, the appellee Michael Coon, husband of plaintiff Margaret Coon, was indebted to her in the sum of $ 1,000 for money had and received, and for the purpose of paying said sum so due said Michael contracted and agreed with her that he would cause to be conveyed to her the following real estate, to wit, (then follows the description of ten acres of land in the county of Grant); and in compliance with said agreement he undertook to convey said real estate to George Coon under and by virtue of an agreement that said George Coon should convey the same to said Margaret. But by mistake said Michael conveyed a different ten acre tract to said George Coon, and that said George Coon and his wife, Amanda Coon, by mistake, conveyed to this plaintiff the last mentioned tract instead of the first; that each of said parties, Michael and George Coon and his wife, in each of the conveyances mentioned, undertook and intended to convey the first mentioned tract, and at the time of the conveyance the said Margaret was put in possession of said first mentioned tract, and has ever since been in the quiet and peaceable possession thereof, and that said misdescription was made by mistake only.

Said George Coon and wife are made defendants, as well as John Sanders, sheriff of Grant county; that on the 8th day of September, 1890, Archibald Comstock, as surviving partner of Henry R. Lowe & Co., obtained a judgment against the above named Michael Coon, in the Pulaski Circuit Court, for $ 397.21, and that on the 19th day of May, 1891, said Comstock took out execution on said judgment and placed the same in the hands of appellant John Sanders, sheriff of Grant county, Indiana, as such sheriff, and that on the 1st day of June, 1891, said sheriff levied said execution on the real estate last mentioned and described, and is threatening, and is about, to sell the same for the purpose of satisfying said judgment; that if he is not restrained he will so sell said real estate. Wherefore, plaintiff asks that said sheriff be restrained and forever enjoined from so selling said real estate, or from offering the same for sale by virtue of said judgment and execution, and that the plaintiffs' title be quieted and for all other proper relief."

The first objection urged to this complaint is that it fails to show a consideration for the agreement of Michael Coon to convey the land described to the appellee Margaret Coon, his wife.

It is settled law that a reformation of a deed can not be enforced where there is no consideration therefor, and where it is merely voluntary. German Mutual Ins. Co. v. Grim, 32 Ind. 249; Froman v. Froman, 13 Ind. 317; Randall v. Ghent, 19 Ind. 271; Andrews v. Andrews, 12 Ind. 348.

But if there is any consideration at all for the conveyance, a mistake therein may be corrected.

In Mason v. Moulden, 58 Ind. 1 (3), this court said: "The case is not entirely like one where specific performance of a contract is sought. Here, the vendor attempted to perform her contract, and executed a deed for that purpose. The aid of the court is required only to correct a mistake into which the parties mutually fell in the execution of their purpose, the one to convey, and the other to receive, the title to the land. * * * We may observe, that it is not essential that the consideration should be adequate. * * * It is, indeed, necessary that the consideration should be of some value; but it is sufficient, as we have said, if it be of slight value only."

The complaint showed, that an indebtedness of said Michael Coon to appellee Margaret Coon, his wife, for one thousand dollars, was the consideration for the conveyance; that the agreement was between the husband, Michael, and the wife, Margaret Coon, that the conveyance was to be made to her in payment and satisfaction of said debt. That was ample consideration. But it is contended, that this indebtedness was not a valid consideration, because it was a past consideration. True, it was a past consideration; that is, it passed from the appellee Margaret Coon before the contract was entered into between her and her husband, Michael Coon, by which he was to convey the land to her.

Appellants' counsel seem to suppose that a past consideration is not sufficient to support a promise or contract in any case. In this they are in error. A past consideration is insufficient only in cases where the promisor is under no previous legal or moral obligation to pay or perform. In a case like the present, where the promisor was under a previous obligation to pay the debt, both legal and moral his promise to do so, by causing the land to be conveyed from himself to his wife, through the...