Majors v. Craig

• Decision Date: 20 February 1896
• Citation: 144 Ind. 39,43 N.E. 3
• Parties: MAJORS et al. v. CRAIG et al.
• Court: Indiana Supreme Court

144 Ind. 39

43 N.E. 3

MAJORS et al.

v.CRAIG et al.

Supreme Court of Indiana.

Feb. 20, 1896.

Appeal from circuit court, Morgan county; W. J. Buckingham, Judge.

Action by Noah J. Majors, executor, etc., and others, against James C. Craig and others, for correction of a decree. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. H. Parks and W. S. Shirley, for appellants. Willis Hickam, W. R. Harrison, and Oscar Matthews, for appellees.

MONKS, J.

This proceeding was brought by appellants to correct an alleged mistake in a decree rendered in 1882 by the Morgan circuit court. This is the second appeal of the cause. On the former appeal the judgment was reversed, with instructions to the court below to sustain the demurrer to the complaint. See Craig v. Major, 139 Ind. 624, 35 N. E. 1098, where the complaint and the nature of the controversy are fully set forth. When the cause was returned to the court below, the demurrer to the complaint was sustained, and appellants in this appeal, who were the plaintiffs below, filed an amended complaint, to which appellee Satterwhite filed a demurrer for want of facts, which was sustained. This action of the court is assigned as error.

As this court held on the former appeal that the complaint was not sufficient, that is the law of this case; and the only question to be determined is whether the additional facts set forth in the amended complaint render it sufficient to withstand the demurrer. The amendment consists of the following additions to the original complaint: “That said Noah J. Majors, as such executor, did not at any time sell to Satterwhite any land lying north of said original line, and said Satterwhite had not at any time paid any consideration whatever for any land lying north of said original line, as established between the said Craig and Sims tracts as aforesaid. That said Sarah M. Sherley paid to said Sims the full consideration and price for said land so bought of him, including the land lying immediately north of said original line established between said Craig and Sims tracts as aforesaid, and before she had any actual notice or knowledge of said decree and mistake therein, and after said Sims had left the state of Indiana, and ceased to be a resident thereof, leaving no money or property whatever in said state; all before the said Sarah M. Sherley had any notice or knowledge that Satterwhite claimed any land off of the Sims tract north of said original line by virtue of said decree, which said Sims had sold her as aforesaid; and said Satterwhite had notice of the claim of right, title, and possession of said land by said Sims and Sherley up to said original line when he (Satterwhite) purchased the same from said Majors. * * * And the said Satterwhite stood by and had actual notice that said Sarah M. Sherley was buying said land from said Sims, and paying the full price therefor, in manner aforesaid, and without asserting any right or title to any land lying north of said original line by virtue of said decree or otherwise, and allowed said Sims and Sherley to spend money and make valuable and permanent and lasting improvements on said land along said original line, and without any objection thereto, but assenting thereto.” It was held on the former appeal that this was not a proceeding to correct the decree for any error of the court or fraud of the parties, but for the alleged reason that counsel for plaintiff, on account of a misconception by him and his client in that suit of the scope of the description of the real estate contained in the complaint, informed the defendant Sims that the lands claimed in the complaint were not so described as to include any belonging to him. The complaint in this respect is unchanged. A proper inquiry or examination by Sims of the complaint on file in the clerk's office in that case would have disclosed to him the error, if any, in the alleged information as readily as to the attorney who gave it. We think that Sims, under the facts alleged, had no right to rely upon the information so given. Lake v. Jones, 49 Ind. 297;Snipes v. Jones, 59 Ind. 251;Bowen v. Bragunier, 88 Ind. 558, 562;Rosa v. Prather, 103 Ind. 191, 2 N. E. 575;English v. Aldrich, 132 Ind. 500, 501, 31 N. E. 456;Ratliff v. Stretch, 130 Ind. 282, 30 N. E. 30. The amended complaint does not show that Sims could not have prevented the procurement of the judgment by the exercise of reasonable diligence. This was essential to the sufficiency of the complaint. Hollinger v. Reeme, 138 Ind. 363, 367, 368, 36 N. E. 1114. It was held on the former appeal that, conceding that Sims had the right to rely upon said statement of the attorney of the plaintiff, to render the complaint sufficient to withstand a demurrer it must be alleged that Satterwhite purchased said real estate with knowledge that such information had been given by said attorney, and that the same was false. There is no such allegation in the amended complaint. It is clear that, if Satterwhite purchased said real estate without knowledge of the alleged mistake in the decree, the same cannot be corrected as against him. Craig v. Major, 139 Ind. 624, 35 N. E. 1098, and authorities there cited on pages 629, 630, 139 Ind., and page 1098, 35 N. E.;Railway Co. v. Bird, 116 Ind. 217, 221, 226, 18 N. E. 837. In the amended complaint there is an...