Fleetwood v. Brown

• Decision Date: 20 November 1886
• Citation: Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352 (Ind. 1886)
• Parties: Fleetwood v. Brown.
• Court: Indiana Supreme Court

109 Ind. 567

9 N.E. 352

Fleetwood

v.Brown.¹

Supreme Court of Indiana.

November 20, 1886.

Appeal from circuit court, Jackson county.

W. K. Marshall and Jason B. Brown, for appellant.Burrell, Applewhite & Applewhite, for appellee.

Zollars, J.

This action is by appellee upon a promissory note, executed by appellant.The first alleged error argued by appellant is the sustaining of a demurrer to the second paragraph of his answer.That paragraph may be summarized as follows: In 1879, Jesse Fleetwood, the father of the parties hereto, was the owner of 240 acres of land in Jackson county, and was a resident of that county, where also his wife and children, including the parties, resided, and where these parties have still resided.In that year, Jesse Fleet-wood abandoned his family and property, and left the state, and his where-abouts was unknown to the parties hereto, and to the other members of his family, until he returned, in June, 1885.Upon his return he took possession of his lands, excluding others therefrom, and afterwards sold the lands.In September, 1884, at the time the note in suit was executed, for a long time prior thereto, and afterwards, until his return in June, 1885, the parties hereto and the balance of the family supposed and believed that he was dead.After his departure, and before the note in suit was executed, his wife, and the mother of these parties, died.If he had been dead, as supposed, appellee, as one of his heirs, would have been the owner of the undivided one-eleventh part in value of the lands.Acting upon the belief that he was dead, and that she was therefore such owner, she sold that interest to appellant, and executed to him a quitclaim deed without covenants of warranty.He paid a small part of the agreed purchase price in cash, and gave his note, being that in suit, for the balance.Jesse Fleetwood had no knowledge that such a deed had been executed until after his return, never recognized it as of any force, and, as already stated, took possession of the lands, excluded appellant therefrom, and sold them.It is alleged that the supposed death of Jesse Fleetwood was the controlling fact that induced the sale and purchase; that, if the parties had known that he was alive, appellee would not have sold, nor attempted to sell, any supposed interest in the lands, and appellant would not have purchased, or given the note; that the whole transaction, including the execution of the note, was the result of a mutual mistake of fact; and that, therefore, as appellant got nothing, appellee should not be allowed to collect the note.Appellant, with the answer, tendered a quitclaim deed to appellee for the interest described in her deed to him.

It seems to us that this paragraph of answer makes a clear case of a mutual mistake of fact, and a mistake as to a fact that underlies the whole transaction.Had Jesse Fleetwood been dead, appellee would have owned an interest in his lands which she might have conveyed so as to transfer to her grantee a thing of value.As it was, she owned no interest at all in the lands that she could convey.She parted with nothing by the attempted conveyance, and appellant got absolutely nothing for the cash he paid and the note in suit.The deed executed by appellee, as we have seen, was a quitclaim, without covenants of warranty; but we are unable to understand how that fact can deprive appellant of the defense set up in the answer under consideration.The defense is not based upon the deed, but upon a fact back of it,-upon the mutual mistake of the parties which lead to its execution, and to the execution of the note.But for that mistake, neither instrument would have been executed.The mistake was thus in relation to a material fact.That appellant was mistaken as to that fact was not the result of any negligence on his part.Jesse Fleetwood had been absent and unheard of for such a length of time that for some purposes he was presumed to be dead.Rev. St. 1881. § 2232 et seq.;Acts 1883, p. 209.In any event, ...