Pierce v. Vansell
| Decision Date | 23 May 1905 |
| Docket Number | 5,189 |
| Citation | 74 N.E. 554,35 Ind.App. 525 |
| Parties | PIERCE, ADMINISTRATOR, v. VANSELL ET AL |
| Court | Indiana Appellate Court |
From Parke Circuit Court; A. F. White, Judge.
Action by Isaac N. Pierce, as administrator for the estate of Leander Carithers, deceased, against Rowland Vansell and wife. From a decree for defendants, plaintiff appeals.
Reversed.
Howard Maxwell, William A. Keerns and Elmer F. Williams, for appellant.
McNutt & McNutt, for appellees.
Action by appellant to reform a report of sale of real estate of the decedent made by the administrator to Sarah Vansell, a former wife of appellee Rowland Vansell, and to correct a deed made in execution of said sale. Appellees filed answers in several paragraphs, to all of which, except the first, demurrers were overruled. Appellant refused to plead further after his demurrers to the several paragraphs of answer were overruled, and judgment was rendered against him for costs. These adverse rulings are assigned as errors.
To the end that we may determine the correctness of the rulings on the demurrers to the several paragraphs of answer, it is important to understand the nature of the action as disclosed by appellant's amended complaint. It is therein averred that appellant's decedent died in February, 1884, and that he left no widow, father, mother or children surviving him; that appellant was appointed and qualified as administrator on the 7th day of March following; that in May 1885, he filed a petition praying for the sale of the real estate owned by the decedent, and that one of the tracts of land to be sold under said proceeding was described as follows: "Beginning at the northeast corner of the southeast quarter of the southeast quarter of section two township thirteen north, of range eight west, and running thence north to the northeast corner of the southeast quarter of said section two; thence west to the land now owned by Sarah A. Vansell in said southeast quarter of said section two; thence southeastwardly along the northeast line and boundary of said lands of Sarah A. Vansell to the place of beginning--containing twelve acres, more or less." It is then averred that the above description of the real estate embraced and contained thirty-nine acres, instead of twelve acres, more or less, and that appellant was wholly ignorant of said fact; that on the 23d of June, 1885, the court ordered appellant, as administrator, to sell "twelve acres, more or less, embraced in and described by the foregoing description," both the court and the appellant being ignorant at the time of the fact that the above description embraced thirty-nine acres instead of twelve; that in pursuance of said order he did sell on October 24 following said tract of land, described as being "twelve acres, more or less," to Sarah A. Vansell, for $ 20 per acre, that being the appraised value thereof; that said sale was reported to and confirmed by the court at a subsequent date, and the court ordered appellant to make a deed to said purchaser for said "twelve acres, more or less." The description of the land sold, as shown by the deed, is substantially the same as above quoted.
It is then averred that both the appellant and said Sarah A. Vansell were ignorant as to the amount of land described in said deed, and both believed the same to describe only "twelve acres, more or less"; that appellant intended to sell to said Sarah A. Vansell, and she intended to buy, only "twelve acres, more or less," of the land described, "which ought to have been, and was intended by said parties to be, described as follows: Beginning at the northeast corner of the southeast quarter of the southeast quarter of section two, township thirteen north, of range eight west, and running thence northwestwardly "to a hickory tree, and thence in the same direction to the half-section line--running east and west--and thence east thirty rods; thence in a southeastwardly direction, a line parallel with the line first above described to the east line of said section two; thence south to the place of beginning--containing twelve acres, more or less"; that, by the mutual mistake and ignorance of the parties to said deed, the description as therein contained was inserted; that said deed containing said description of thirty-nine acres was reported to the court on the 2d day of November, 1885, and was duly confirmed, and that both the court and the appellant were ignorant of the mistake in the description; that said Sarah A. Vansell took possession of the entire tract, and that she and her husband, the appellee Rowland Vansell, continued in possession until her death in May, 1888, and that since her death said Rowland Vansell has ever since had, and now jointly with his co-appellee has, possession of the same, and they are claiming to own and hold title under said deed to the whole thirty-nine acres, as described therein; that said Sarah A. Vansell at her death left Rowland Vansell as her only heir at law; that appellant did not learn of said mistake in the description of the land as contained in the deed until some five years after making said sale and conveyance; that upon discovering said mistake he called the attention of appellee Rowland Vansell to it, who was claiming to be the owner of said real estate. It is then averred that Rowland Vansell told appellant that if he would have said real estate surveyed, and if it was shown that any mistake had occurred as to the number of acres he would take the residue above "twelve acres, more or less," at $ 20 per acre; that thereupon appellant caused said real estate to be surveyed, and by said survey said mistake was discovered, but that said appellee Rowland Vansell refused to correct the same, and denied that there was any mistake.
It is further averred that on the 23d day of November, 1890, said Rowland Vansell intermarried with his co-appellee, who is now his wife, and that on the 9th day of September, 1892, he conveyed all of his real estate to his co-appellee, who then and there had notice of said mistake in said description, and that her said grantor was entitled to only "twelve acres, more or less," of said thirty-nine acres first described, and that appellant sold to Sarah A. Vansell only "twelve acres, more or less." It is then averred that appellant's decedent is indebted to the amount of $ 1,000, as shown by claims filed and allowed against said estate, and that there is no other property, real or personal, out of which said debts and the cost of administration can be paid; that appellees refuse to correct said mistake, or to reconvey said real estate not intended to be conveyed as aforesaid, but hold and claim to hold the entire thirty-nine acres, as embraced in the original description. The prayer of the complaint is that the court reform the report of the sale, the deed and the confirmation thereof, so as to conform to the facts pleaded.
Appellees answered separately. The separate answer of Rowland Vansell is in four paragraphs. The first is a denial. The second pleads the five-year statute of limitations. The third paragraph relies upon an estoppel by conduct, in which it is averred that the sale, as originally made, has been confirmed by appellant in the following manner: That said land was sold for $ 240, $ 80 of which was paid in cash, and that the deferred payments of $ 80 each were evidenced by promissory notes executed by the purchaser; that said notes were secured by mortgage on the real estate, which said notes and mortgage were made payable to the appellees; that, before the bringing of this action, appellant transferred said notes and mortgage by indorsing the same to James H. Carithers, and that said transfer was made for a valuable consideration; that thereafter, to wit, September 24, 1896, said assignee brought suit against appellees to foreclose said mortgage; that a decree of foreclosure was entered in said cause on the ----- day of -----, 1903; that the land described in said mortgage was the identical land described in appellant's complaint and in his petition as administrator to sell, and also, as described in the deed of appellant to Sarah A. Vansell, and which, as alleged in appellant's complaint, contained thirty-nine acres; that under the decree of foreclosure said real estate was ordered to be sold to pay said deferred payments. And it is averred that by reason of said facts said sale has been fully confirmed by appellant and by his assignee, and that by reason of which appellant is estopped to maintain this action. The fourth paragraph is in all essential regards the same as the third.
The first, second, third and fourth paragraphs of answer of the appellee Maggie Vansell are identical to those of her co-appellee. In her fifth paragraph of answer she avers that on or about November 20, 1890, she entered into a contract with Rowland Vansell whereby he agreed to convey to her ninety-five acres of land in Nevins township Vigo county, Indiana, which said ninety-five acres included that described in appellant's complaint, and alleged to contain thirty-nine acres; that said agreement to convey said land was made in consideration of the agreement of said Maggie Vansell to marry her co-appellee; that said agreement was in writing, and as follows: ...
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