Guthrie v. Howland

• Decision Date: 14 February 1905
• Docket Number: No. 19,595.,19,595.
• Citation: 164 Ind. 214,73 N.E. 259
• Parties: GUTHRIE v. HOWLAND et al.
• Court: Indiana Supreme Court

164 Ind. 214

73 N.E. 259

GUTHRIE

v.HOWLAND et al.

No. 19,595.

Supreme Court of Indiana.

Feb. 14, 1905.

Appeal from Circuit Court, Martin County; James W. Ogden, Judge.

Action by Alfred Guthrie against Adda T. Howland and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

See 65 N. E. 1040.

A. J. Padgett and J. A. Padgett, for appellant. Gardiner v. Gardiner, for appellees.

JORDAN, J.

This cause was transferred by the Second Division of the Appellate Court to the Supreme Court under the first clause of section 1337j, Burns' Ann. St. 1901, for the reason-asserted in the opinion of the court transferring the cause-that certain decisions of the Supreme Court are erroneous; or, in other words, it is stated in said opinion that “there is a line of cases holding that when a demurrer is sustained to a pleading, and no exception is reserved, and an amended pleading is filed, the original pleading goes out of the record, and cannot be considered for any purpose.” Citing Weaver v. Apple, 147 Ind. 304, 46 N. E. 642;State v. Jackson, 142 Ind. 259, 41 N. E. 534;Dorsett v. City of Greencastle, 141 Ind. 38, 40 N. E. 131; and Gowen v. Gilson, 142 Ind. 328, 41 N. E. 594. The opinion of the AppellateCourt further affirms that the holding of the Supreme Court in each of the cases above cited is in conflict with that in the appeal of Town of Whiting v. Doob, 152 Ind. 157, 52 N. E. 759; and that court recommends that the cases affirming a different rule from that asserted in the Doob Case, supra, be either modified, distinguished, or overruled. But the record in this appeal, from our view, presents no question upon which any of the cases recommended to be modified or overruled can become a ruling precedent. Consequently, under the circumstances, we are not required to review the decisions mentioned by the Appellate Court, in order to determine whether the rule of procedure therein announced should be in any manner modified or distinguished. So far as the record herein can be said to properly disclose, it appears that appellant in the lower court filed his verified complaint or petition to have a judgment rendered in that court in an action between him and the appellees herein set aside and vacated on the alleged ground that it was procured through the fraud of appellee Adda T. Howland. The latter filed a written motion to dismiss, reject, and strike the complaint or petition from the files in said cause. Several grounds were assigned for striking out the complaint, among which was that the complaint “states facts that show that the plaintiff is not entitled to the relief therein prayed for.” This motion, over appellant's exceptions, was sustained, and the complaint was stricken from the files, and judgment was accordingly rendered against him for costs. He appeals, and assigns as error the ruling of the lower court on the motion to strike out and dismiss his pleading. The complaint, and the motion to dismiss, and the ruling of the court thereon, have all been made a part of the record by a bill of exceptions.

The following may be said to be a summary of the facts disclosed by the complaint, and relied upon by appellant for setting aside the judgment in controversy: In the year 1896 appellant was the owner of a tract of land situated in Martin county, Ind., upon which certain mineral springs, known as “Indian Springs,” were situated, together with a large hotel and other buildings. The hotel had sufficient capacity to accommodate 600 guests, and was fully furnished, and equipped with everything necessary for carrying on a hotel. All of said property was of the reasonable value of $80,000. Appellee Adda T. Howland in said year claimed to be the owner in her own right of 33,000 acres of timber land in the counties of Columbia and Bradford, in the state of Florida, which was of the value of $5 per acre. On August 14, 1896, appellant and she made an even exchange of their said properties; appellant conveying by warranty deed the said Martin county property to her, and she conveying to appellant, by warranty deed, 27,000 acres, and by a quitclaim deed 3,000 acres, of the land situated in Florida. This land was incumbered by a mortgage of $2,700, held by one McKhann, and appellate assumed the payment of this mortgage; and, in order to make the trade an even one, appellee executed to appellant a mortgage on the Martin county property for $2,700. In conducting this trade, one Baxter acted as the agent of appellee, and she and her said agent had and used an abstract of title to the Florida lands which purported to show a good and perfect title therein to appellee, and that said land was free from incumbrances, except the mortgage for $2,700. Appellee also made an affidavit in which she stated that the title to said lands in Florida was vested in her, except the rights of squatters on the same, and that it was free from all incumbrances. Appellant resided in Indiana, and was wholly unacquainted with said lands in Florida, or in respect to the title thereto, and relied on said abstract and affidavit as to appellee's title. On September 1, 1897, it appears that appellant filed in the Martin circuit court his complaint against appellee and the other appellees herein to rescind said trade, and to recover his Martin county property; and, on the 11th day of April following, he filed his amended complaint, which is set out in full in the petition herein. By the amended complaint he set out the facts heretofore stated, and, in addition thereto, the further facts that, prior to the execution of the deed to appellant for the Florida lands, appellee had conveyed the same to one McKhann; that there were, at the time of making said trade by her and appellant, numerous persons, unknown to him, in possession of the lands, owning the same and claiming title thereto, which claim was paramount to the title of appellee; that, prior to the time that she executed the deed to appellant to the Florida lands, she had conveyed a large and valuable part of said lands to said McKhann; and that he and his agents had taken possession thereof, and had sold and conveyed and received money for all of said lands that had any market value. He further averred that appellee and her agents “falsely and fraudulently represented to him that she had a good and feasible title,” and that he relied upon these representations and believed them to be true, but in fact they were false, and were known to be false at the time by appellee and her agent, and that she did not have a good title to the lands in question. Issues were shown to have been joined between the parties on the complaint and cross-complaint filed in the case, and all of the pleadings and papers therein, apparently, are made exhibits in appellant's petition in the case at bar. It is further shown that, before said cause came to trial, appellant and appellee entered into a compromise, which was entered of record in the form of a judgment, by the terms of which all matters existing and in controversybetween appellant and appellees in said action were adjusted, and a judgment was entered of record quieting the title of appellee to the Martin county property conveyed to her by appellant, and declaring a lien thereon in favor of appellant for the sum of $400. Appellant alleges in his petition herein that, at the time he filed his complaint and amended complaint in the action heretofore mentioned, he did not know of any defects in the title to said Florida lands, except the claim of title by McKhann and the claims made thereto by squatters. He alleges that at, and before he entered into said compromise and permitted said judgment to be rendered, he had knowledge that the McKhann deeds were invalid and ineffectual to convey title, for the reason that they had not been recorded within the time prescribed by law; and he avers that after the filing of his said complaint in the original action, and before the compromise therein was effected, the squatters had surrendered to him their claims and possession to said Florida lands, so that, when he entered into the compromise and suffered the judgment in question to be rendered, he believed that all claims and defects in said title “had been cleared up,” and that he knew of no defects then existing in respect to said title. He further charges that appellee Howland, in order to induce him to enter into said compromise and consent to the rendition of the judgment in controversy, “falsely and fraudulently” represented to him that she had a good and perfect title to said real estate when she conveyed it to him (appellant), and that there were no defects in her title, and appellant knew of no defects in said title, and relied upon the statements and representations of her and her agent, and was induced thereby to enter into said compromise and consent to the rendition of the judgment in controversy. It is further disclosed that appellee and her agent at the time of making said trade, and up to and including the negotiations leading to the compromise and rendition of judgment, fraudulently concealed from appellant certain defects in the title to the Florida lands in question, all of which defects were well known to appellee and her agent, but were wholly unknown to appellant; that, had he had knowledge of the same, he would neither have made said trade, nor entered into the compromise and consented to the rendition of the judgment. These concealed defects in the title to the land appear to be as follows: On April 7, 1879, 14,000 acres of the Florida land were sold for delinquent taxes, and a certificate of purchase issued. No redemption from said sale was ever made, and the certificate in question was assigned to appellee Charles F. McKhann, who was the owner and holder thereof at the time of said trade, compromise, and judgment, all of which facts at the time were known to appellee Adda T. Howland. McKhann in July, 1899, presented his...