Radebaugh v. Scanlan

• Decision Date: 20 November 1907
• Docket Number: No. 6,147.,6,147.
• Citation: 41 Ind.App. 109,82 N.E. 544
• Parties: RADEBAUGH v. SCANLAN.
• Court: Indiana Appellate Court

41 Ind.App. 109

82 N.E. 544

RADEBAUGH

v.SCANLAN.

No. 6,147.¹

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1907.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by Elizabeth Radebaugh against Michael Scanlan. Judgment for defendant. Plaintiff appeals. Affirmed.Megee & Kiplinger, for appellant. Smith, Cambern & Smith, for appellee.

RABB, J.

The appellant brought this action in the court below for the partition of lot 24 in Smith & Carr's addition to the city of Rushville, claiming to be the owner of the undivided one-third thereof by virtue of her marital right as the wife and widow of John S. Radebaugh. The appellee filed several paragraphs of answer to this complaint, and also a cross-complaint, the cross-complaint alleging that on the 23d day of October, 1866, John S. Radebaugh was the husband of the plaintiff, and was at the time the owner of the lot in question, and that on said day said John S. Radebaugh and plaintiff sold and attempted to convey said real estate to one James Goddard; that the deed therefor was duly signed and acknowledged by the said John S. Radebaugh and Elizabeth Radebaugh, but that by the mutual mistake of the parties and of the notary who wrote the deed the notary failed to insert the name of the said Elizabeth in the body of said deed; that said deed and its acknowledgment are in the following words:

“This indenture witnesseth that John S. Radebaugh, of Rush county, in the state of Indiana, conveys and warrants to James Goddard, in Rush county, in the state of Indiana, for the sum of two thousand dollars, the following real estate in Rush county, in the state of Indiana, to wit: Town lots numbered twenty-four (24) and twenty-five (25) in Mathew Smith's addition to the town of Rushville, and south half of town lot numbered two hundred (200) in West Rushville, as known and designated on the recorded plats of said additions to Rushville, and town lot numbered sixty-seven (67) in Roland T. Carr's addition to the town of Rushville, aforesaid. In witness whereof the said John S. Radebaugh has hereunto set his hand and seal this 23rd day of October, 1866.

“John S. Radebaugh.

[Seal.]

“Elizabeth her (X) mark Radebaugh.

[Seal.]

“State of Indiana, Rush County-ss.:

“Before me, Hugh M. Spalding, a notary public in and for said county, this 23d day of October, 1866, John S. Radebaugh acknowledged the execution of the annexed deed.

“Witness my hand and notarial seal.

“Hugh M. Spalding,

“Notary Public. [Seal.]”

“State of Indiana, Rush County-ss.:

“Before me, a notary public in and for said county, this 5th day of November, 1866, Elizabeth Radebaugh acknowledged the execution of the annexed deed.

“Witness my hand and official seal.

“John R. Mitchell,

“Notary Public. [Seal.]”

There is a prayer that the mistake be corrected, and the cross-complainant's title to the premises quieted. Appellant's demurrer to this cross-complaint was overruled and exceptions reserved and answers filed thereto, issues formed on the complaint, answer, reply, cross-complaint, and answer thereto, submitted to the court for trial, with the request from appellant that the court make a special finding of facts and state conclusions of law thereon.

A special finding of facts was made by the court and conclusions of law stated thereon favorable to appellee, to which conclusions of law the appellant at the proper time excepted, and a judgment in favor of appellee on his cross-complaint was rendered. The error assigned and relied on by appellant for the reversal in this court is the overruling of appellant's demurrer to the cross-complaint. Appellee contends that under the authority of Woodward v. Mitchell, 140 Ind. 406, 39 N. E. 437, no question as to the sufficiency of appellee's cross-complaint arises, for the reason that a special finding of facts was made by the court, and conclusions of law stated thereon, and that the special finding of facts takes the place of the cross-complaint, and the rights of the parties are to be governed by the facts as they appear in the special findings. So far as this case supports appellee's contention, it has been overruled by the case of Goodwine v. Cadwallader, 158 Ind. 204, 61 N. E. 939. While the case of Woodward v. Mitchell, supra, was not directly referred to in the case of Goodwine v. Cadwallader, supra, the question decided and doctrine announced in the latter case are in square antagonism to appellee's contention. In the Goodwine v. Cadwallader Case, supra, it was sought to aid the complaint by facts appearing in the special finding. The court, by Monks, J., say in deciding that point: “Appellee insists that, there being a special finding of facts and conclusions of law thereon, such defect in the complaint is not available in this court. It is true that, where there is a special finding, the facts found may show that the action of the court in overruling a demurrer to a paragraph of complaint or answer was harmless. But this is only true where there is some other paragraph of the complaint or answer which is sufficient which the special finding follows and sustains. In other words, where the facts found and conclusions of law stated show they sustain and rest upon a good paragraph of a complaint or answer, and the judgment is rendered thereon, the error of the court in overruling a demurrer to other paragraphs of the complaint or answer is harmless, because the record affirmatively shows that the judgment rests upon the good, and not the insufficient, paragraph.” The same rule is announced in the following cases: Pittsburg, etc., Co. v. Moore, 152 Ind. 348, 53 N. E. 290, 44 L. R. A. 638;American Ins Co. v. Replogle, 114 Ind. 7, 15 N. E. 810;McComas v. Haas, 93 Ind. 280. The special finding of facts, the conclusions of law thereon, and the judgment of the court in this case being based solely on the appellee's cross-complaint, and appellant's demurrer for want of facts having been overruled thereto, the sufficiency of this pleading is necessarily presented by the record. The pleading shows upon its face that, unless the cross-complainant is entitled to a reformation of the deed set forth in the cross-complaint, the demurrer thereto should have been sustained. The case of Parish et al. v. Camplin et al., 139 Ind. 1, 37 N. E. 607, is authority for the proposition that mistakes made in deeds and mortgages of the character sought to be corrected here may, upon a proper showing, be corrected.

Appellant contends that the cross-complaint under consideration, if good at all, must be upheld upon the ground that it seeks a correction of the deed from appellant and her husband to Goddard; that, unless this deed is corrected, the answer affirmatively shows title in one-third of the premises in her. Upon this premise she contends that the cross-complaint is bad, for the reason that it fails to allege a previous definite contract between the parties to the deed by which appellant and her husband were bound to execute to Goddard a deed for the real estate in dispute; that it fails to allege an intention on the part of the parties to the deed, or an intention on the part of the appellant, to make any different deed from the one she did sign, and which is set out in the cross-complaint; that it fails to allege that the parties were ignorant of the alleged mistake, or, in other words, that the...