Harvey v. Hand
| Decision Date | 03 October 1911 |
| Docket Number | 7,460 |
| Citation | 95 N.E. 1020,48 Ind.App. 392 |
| Parties | HARVEY ET AL. v. HAND ET AL |
| Court | Indiana Appellate Court |
From Boone Circuit Court; Willet H. Parr, Judge.
Suit by Stephen Harvey and another against Mary J. Hand and another. From a judgment for defendants, plaintiffs appeal.
Reversed.
Henry C. Cox, Patrick H. Dutch and Hanly, McAdams & Artman, for appellants.
A. J Shelby and Shirts & Fertig, for appellees.
Suit by appellants to reform a deed made to appellee Mary J. Hand by her parents, Andrew Harvey and wife.
The deed sought to be reformed is absolute on its face, and conveys to Mary J. Hand the fee-simple title to ninety-three and one-third acres of land in Boone county Indiana. By this suit appellants seek to reform the deed so as to make it conform to an alleged antecedent agreement between said Mary J. Hand and her parents, which appellants claim was intended to be incorporated in the deed, and by the terms of which it was agreed that such deed should convey the title to fifty-three and one-third acres of said land to Mary J. Hand in trust for these appellants, and that the grantors should retain a life estate in all the land conveyed.
The transcript contains numerous complaints--original, amended and additional--to all of which demurrers were sustained, and these rulings constitute the errors assigned.
Appellees first insist that because of these numerous complaints, and the failure of appellants properly to number their paragraphs, the record is in such a confused state that no question is presented to this court as to the sufficiency of any paragraph. An examination of the record, however, leads us to a different conclusion, and one that is in accord with the second contention of appellee, namely, that "the paragraph of complaint last filed, though styled additional paragraph,' having been filed after demurrers were sustained to the preceding paragraphs, should be treated as an amended complaint, and as a waiver of all previous exceptions."
The transcript discloses that said several complaints and paragraphs thereof all state the same cause of action; that successive demurrers were filed and sustained to each, with no election to stand upon anyone, but with leave taken to amend before the filing of the last paragraph.
Under such circumstances, the last paragraph filed "constituted the only complaint that was then before the court, * * * and was, in legal effect, an amended complaint, without regard to the manner in which it was entitled," and the alleged errors in sustaining the demurrers to the previous complaints were waived by not electing to stand upon any one, by taking leave to amend, and by pleading further. This position of appellees is supported by authority and conceded by appellants. Scheiber v. United Tel. Co. (1899), 153 Ind. 609, 55 N.E. 742; Hargrove v. John (1889), 120 Ind. 285, 22 N.E. 132; Horman v. Hartmetz (1891), 128 Ind. 353, 27 N.E. 731.
It is next insisted by appellees that this amended complaint is so uncertain, and contains so many repetitions, that it does not comply with the second subdivision of § 343 Burns 1908, § 338 R. S. 1881, and might have been stricken out, and that, inasmuch as the same result has been reached by the ruling on the demurrer, no available error is thereby presented.
The complaint is not a model, and violates the letter of the clause of the section of the statute referred to, in the matter of repetition, and parts of it should have been stricken out upon proper motion in the court below; but the complaint falls clearly within the requirements of the section cited, in that the cause of action attempted to be stated therein is stated "in such a manner as to enable a person of common understanding to know what is intended," and should not, on account of the infirmities mentioned, be held insufficient as against a demurrer, if it be in other respects sufficient to state a cause of action. In the prayer of this paragraph, appellants, in addition to seeking the reformation of the deed, ask that the title to the fifty-three and one-third acres be quieted. Appellees insist that the complaint is not good on this theory, and that there was no error in sustaining the demurrer thereto.
Appellants concede that the paragraph lacks the essential elements of a complaint to quiet title, and insist that it does not proceed upon that theory, but that its sole theory is the reformation of the deed in question, and that a complaint which shows that plaintiffs are entitled to some relief, though not entitled to all the relief prayed for, is sufficient.
It is clear that the controlling, if not the sole theory of this complaint is the reformation of the deed, and appellants' position, that a complaint is sufficient if it states facts that entitle the plaintiff to any relief, though not to all the relief prayed for, is abundantly supported by authority. Shepardson v. Gillett (1892), 133 Ind. 125, 31 N.E. 788; Linder v. Smith (1892), 131 Ind. 147, 30 N.E. 1073; Gowdy Gas Well, etc., Co. v. Patterson (1902), 29 Ind.App. 261.
The only question remaining to be considered, which is the real question in the case, is whether the complaint states facts sufficient to entitle appellants to the reformation of the deed in question.
The complaint is lengthy, and we shall set out only that part necessary to an intelligent understanding of the decision of the question here involved, and the grounds on which this opinion is based. It alleges that Andrew Harvey and his daughter, Mary J. Hand, entered into an antecedent parol contract, by the terms of which the father and his wife agreed to convey to appellee Mary J. Hand the ninety-three and one-third acres of land, described in the deed; that forty acres were to be held by said appellee in her own right, and fifty-three and one-third acres, particularly set out and described in the complaint, were to be held by her in trust for appellants; that the entire tract was to be held by her subject to the life estate of the grantors; that said appellee agreed to accept such deed, and to perform the conditions. The complaint then alleges that said deed was actually executed; that by the mutual mistake of all the parties to the deed, and of the scrivener who wrote it, there was not inserted in such deed that part of said parol contract which provided that said appellee should take and hold fifty-three and one-third acres of said real estate in trust for appellants, nor that part of said contract that reserved to the grantors the life estate in said lands; that the grantors caused the deed to be recorded the day after its execution; that at the time of the execution of the deed, and until the death of Andrew Harvey, he believed and understood that such deed expressed the terms of said parol agreement; and that appellee Mary J. Hand accepted the deed, understanding and believing that it so expressed said antecedent contract, pursuant to which it was executed; that appellants did not know until after their father's death that said deed did not so express said contract entered into between him and his daughter.
Upon the subject of the relation of the parties and the consideration that entered into the making of the deed, the complaint alleges the following facts: That defendant Harvey Hand is the husband of Mary J. Hand; that plaintiffs, Stephen and Noah Harvey, are sons of Andrew Harvey, deceased; that besides the children mentioned, Malinda Dodson and George W. Harvey are the children of Andrew Harvey, but are not defendants in this suit; that Andrew Harvey died on January 4, 1905, intestate; that on August 8, 1893, said Andrew Harvey owned in fee simple 172 acres of land, situate in Boone county, Indiana, and personal property not to exceed $ 300 in value; that on said day he made a division of all his land among his children--he gave to Malinda Dodson, forty acres, to George W. Harvey, forty acres, and to Mary J. Harvey, now Mary J. Hand, ninety-three and one-third acres, fifty-three and one-third acres of said ninety-three and one-third acres were given to Mary J. Hand in trust for said Stephen and Noah Harvey, and forty acres of said ninety-three and one-third acres were given absolutely to Mary J. Hand; that said Andrew Harvey was old and infirm; that plaintiffs had helped to clear said farm so deeded to decedent's children; that it was not the intention of said Andrew Harvey to make any difference among his children in the division of his estate; that plaintiffs in this suit had already paid a fair consideration for said fifty-three and one-third acres; that said Andrew Harvey, in conveying said real estate, intended that Mary J. Hand should share equally with said Stephen Harvey and Noah Harvey, and he desired to retain possession of the rentals and profits of said lands during his life time; that the consideration for said lands was natural love and affection, together with a consideration of $ 2,000, as stated in the deed.
It is well settled that the jurisdiction of a court of equity may, in a proper case, be invoked to reform and correct an instrument, and make it state correctly the true agreement of the parties, when it fails so to do. The rule in such cases is that "equity will reform a written contract between the parties whenever, through mutual mistake, or mistake of one of the parties accompanied by the fraud of the other, it does not, as reduced to writing, correctly express the agreement of the parties." Citizens' Nat. Bank v. Judy (1896), 146 Ind. 322, 340, 43 N.E. 259, and authorities cited.
Appellees insist, however, that this...
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