East v. Pedin

• Citation: 8 N.E. 722,108 Ind. 92
• Parties: East v. Pedin.
• Decision Date: 27 October 1886
• Court: Supreme Court of Indiana

108 Ind. 92

8 N.E. 722

East

v.Pedin.^*

Supreme Court of Indiana.

October 27, 1886.

Appeal from Sullivan circuit court.

Action to recover possession of real estate.

Cavius & Cavius and Hays & Hays, for appellant. Beem & Hickam, for appellee.

Mitchell, J.

The questions presented for decision in this case arise upon the following facts: On the first day of April, 1855, Thomas Shepherd died intestate, seized of certain real estate in Greene county, leaving as his only heirs his widow, Rebecca Shepherd, and Lealdus Shepherd, a son. The widow and son inherited the land in equal moities, as tenants in common. On the twenty-fourth day of August, 1857, while yet the widow of her deceased husband, Rebecca Shepherd made a conveyance by which she intended to convey to Eli Adams her interest in the real estate which she inherited from her husband, but which conveyance, through an alleged mistake in the description, did not embrace any of the lands in controversy. This deed recites that it was made upon a consideration of $200. It was duly recorded. On August 30, 1857, six days after the deed was made, Rebecca Shepherd intermarried with John East, and, remaining in possession meanwhile, on the nineteenth day of January, 1865, during her second marriage, she and her husband joined in a quitclaim deed for her interest in the land to Hughes East, who in the same year conveyed to the appellee. From that time forth the appellee has been in possession.

Treating the conveyance made during her second marriage as void, within the prohibition of the statute concerning the alienation of real estate held in virtue of a previous marriage during a second or subsequent marriage, Rebecca East commenced this suit against the appellee in the Greene circuit court, to recover possession of the undivided one-half of certain described lands. The complaint was in the usual form for the recovery of real estate, and the issue was made by an answer of general denial.

That the appellee took no title through the deed made to Hughes East during the appellant's second marriage is conceded on all hands. He had judgment below, nevertheless, upon the theory that it was competent for him to show title out of the plaintiff, by proving that Adams was the equitable owner of the land in controversy through the deed made in 1857, by which it was claimed the appellant intended to convey her interest to him notwithstanding the land in dispute was not described in that deed.

By exceptions to the admission of evidence, and otherwise, the questions presented for decision may be comprehended under the following propositions: (1) Admitting the validity of the defense upon which the appellee prevailed in the court below, was it competent to make such defense under the general denial, without an answer or other pleading asking affirmative relief? (2) The appellee being in no wise in privity with, and having asserted no claim under, the deed to Adams, in which the alleged misdescription was found, was he in a situation to show the mistake, and avail himself of that deed as a defense, by any method of pleading which he might have resorted to?

Respecting pleadings in actions for the recovery of possession of real property, section 1055, Rev. St. 1881, enacts that “the answer of the defendant may contain a denial of each material statement or allegation in the complaint, under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable.” As to what constitutes an equitable defense, the better view, and that supported by the weight of authority, seems to be that any state of facts which would entitle the defendant, in a proper case, to the reformation of an instrument, or which would, under the former practice, if set up in a bill for that purpose, invoke the aid of a court of chancery for relief against the claim or title put forward by the plaintiff, would be a defense coming within that definition. In cases where it is necessary to plead an equitable defense in order to make it available, such defense may be pleaded to bar the plaintiff's right of recovery, without asking affirmative relief, while in actions such as this, governed by section 1055, above set out, equitable defenses are available under the general denial. Under a statutory denial, any facts which show that, according to the principles of equity, as applied by courts of chancery, the plaintiff ought not to recover possession of the land in controversy, may be given in evidence to defeat a recovery. Sedg. & W. Tr. Title Land, §§ 477-488; Pom. Rem. §§ 90, 91, and notes; Hoppough v. Struble, 60 N. Y. 430;Cavalli v. Allen, 57 N. Y. 508;West v. West, 89 Ind. 529;Schenck v. Kelley, 88 Ind. 444;Berlin v. Oglesbee, 65 Ind. 308;Steeple v. Downing, 60 Ind. 478-481;Hogg v. Limk, 90 Ind. 346.

There are cases which seem to lend some support to the view contended for by the appellant, to the effect that an equitable defense, predicated on a mistake in a written instrument, and other defenses of a like character, can only be made available as such by an answer or pleading in which...