Harvey v. Hand

• Decision Date: 03 October 1911
• Docket Number: No. 7,460.,7,460.
• Citation: Harvey v. Hand, 48 Ind.App. 392, 95 N.E. 1020 (Ind. App. 1911)
• Parties: HARVEY et al. v. HAND et al.
• Court: Indiana Appellate Court

48 Ind.App. 392

95 N.E. 1020

HARVEY et al.

v.HAND et al.

No. 7,460.

Appellate Court of Indiana, Division No. 1.

Oct. 3, 1911.

Appeal from Circuit Court, Boone County; W. H. Parr, Judge.

Action by Stephen Harvey and another against Mary Hand and another to reform a deed. Demurrers having been sustained to the amended complaint, plaintiffs appeal. Reversed, with instructions.Hanly, McAdams & Artman, Henry C. Cox, and P. H. Dutch, for appellants. A. J. Shelby and Shirts & Fertig, for appellees.

HOTTEL, J.

Action by the 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 93 1/3 acres of land in Boone county, Ind. By this action appellants seek to reform the deed so as to make it conform to an alleged antecedent contract or 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 between said parties that such deed should convey the title to 53 1/3 acres of said land so conveyed to Mary J. Hand in trust for these appellants, and that the grantor 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 to properly 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 sustained to each preceding paragraph, should be treated as an amended complaint, and as a waiver of all previous exceptions.”

[1] The transcript herein 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 either, 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 either, and by taking leave to amend and pleading further. This position of appellees is supported by authority and conceded by appellants. Scheiber v. United Telephone Co., 153 Ind. 609, 55 N. E. 742;Hargrove v. John, 120 Ind. 285, 22 N. E. 132;Hormann v. Hartmetz, 128 Ind. 353, 27 N. E. 731.

It is next insisted by appellee that this amended complaint is so uncertain, and contains so many repetitions, that it does not comply with the second subdivision of section 343, Burns' 1908, and for this reason 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.

[2] The complaint is not a model, and violates the letter of the clause of the section of statute referred to in the matter of repetition, and parts of the same 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, therefore, on account of the infirmities mentioned, be held insufficient as against 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, also ask that the title to the 53 1/3 acres be quieted, and appellee insists that the complaint is not good upon this theory, and that, therefore, 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 the plaintiffs are entitled to some relief, though not entitled to all the relief prayed for, is sufficient.

[3] It is clear that the controlling, if not the sole, theory of this complaint is the reformation of the deed, and appellants' position that where the complaint states facts that entitle the plaintiff to any relief, though not to all, the relief prayed for is sufficient, is abundantly supported by authority. Shepardson v. Gillette, Audr., 133 Ind. 125, 31 N. E. 788;Linder v. Smith, 131 Ind. 147, 30 N. E. 1073;Gowdy Gas Well, etc., Co. v. Patterson, 29 Ind. App. 261, 64 N. E. 485. The only question remaining to be considered, and the real question in the case, is whether or not the complaint states facts sufficient to entitle the plaintiffs to the reformation of the deed in question.

The complaint is too lengthy to set out in detail, and we will set out only that part necessary to an intelligent understanding of the decision of the question here involved and the grounds upon which this opinion is based. It alleges, in substance, 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 the 93 1/3 acres of land described in the deed; that 40 acres of the same were to be held by appellee in her own right, and 53 1/3 acres particularly set out and described in the complaint were to be held by her in trust for the appellants; that the entire tract was to be held by her subject to the life estate of the grantor; that appellee agreed to accept such deed, and perform its terms and conditions. The complaint then alleges that said deed was actually executed, a copy of which is set out in the complaint; that by the mutual mistake of all the parties to the deed, and of the scrivener who drew the same, there was not inserted in such deed that part of said parol contract which provided that appellee should take and hold 53 1/3 acres of the said real estate in trust for appellants, nor that part of said contract which reserved to the grantor the life estate in the said lands; that the grantor caused the deed to be recorded the day after its execution; that he at the time of the execution of the deed and thereafter, up to the time of his death, always believed and understood that such deed expressed the terms of said parol agreement; and that the appellee Mary J. Hand accepted the deed, understanding and believing that it so expressed said antecedent contract, pursuant to which it was executed; that the 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 the defendant Harvey Hand is the husband of Mary J. Hand. That the plaintiffs Stephen *** and Noah Harvey are sons *** of Andrew Harvey, deceased. That, besides the said children, Malinda Dodson and George W. Harvey are the children of Andrew Harvey, but are not defendants in this suit. That Andrew Harvey died on the 4th day of January, 1905, intestate. That on the 8th day of August, 1893, said Andrew Harvey was the owner in fee simple of 172 acres of land *** situate in Boone county, Ind. *** (and personal property of the value of not to exceed $300). That on the said *** day he made a division of all of his land among his children, to Malinda Dodson, 40 acres, to George Harvey, 40 acres, and to Mary J. Harvey, now Mary J. Hand, 93 1/3 acres, 53 1/3 of the said 93 1/3 acres to said *** Mary J. Hand in trust for said Stephen *** and Noah Harvey, plaintiffs, and 40 acres of said 93 1/3 acres absolutely to *** Mary J. Hand. *** That said Andrew *** was old and infirm. *** That *** plaintiffs had helped to clear up and make said farm *** so deeded to his children. It was not the intention of said Andrew *** to make any difference among his children as to what they should have of his estate. *** That the plaintiffs in this suit had already paid a fair consideration for said 53 1/3 acres. *** Said Andrew *** intended to make *** Mary J. Hand equal with said Stephen *** and Noah Harvey in conveying said real estate. *** He desired *** to retain possession, rentals, and profits on said lands during his lifetime. That the consideration for said land was natural love and...