Wright v. Nipple

• Decision Date: 21 December 1883
• Docket Number: 10,326
• Citation: Wright v. Nipple, 92 Ind. 310 (Ind. 1883)
• Parties: Wright et al. v. Nipple et al
• Court: Indiana Supreme Court

92 Ind. 310

Wright et al. v. Nipple et al

No. 10,326

Supreme Court of Indiana

December 21, 1883

From the Carroll Circuit Court.

The judgment is affirmed, at the appellants' costs.

J Applegate and C. R. Pollard, for appellants.

L. B Sims and M. Winfield, for appellees.

OPINION

Best C.

The appellees, who are the heirs at law of William F. Brown, deceased, brought this action against Isaac S. Wright, Susannah Wright, his wife, and John W. Wright, his son, for breach of the covenants of a deed made by them to said decedent, and against James H. and Harvey W. Wright, two other sons, to set aside as fraudulent a conveyance of other land thereafter made to them by Isaac S. and his wife, and to subject the same to the payment of the appellees' claim for damages.

Issues were formed, a trial had, a verdict returned for $ 2,720, upon which, over motions for a new trial and in arrest, final judgment was rendered.

The defendants appeal and insist that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in sustaining a demurrer to the second paragraph of the answer; that the court erred in overruling the motion for a new trial, and in overruling the motion in arrest of judgment.These will be considered in the order of their statement.

The appellants contend that the complaint fails to aver that the appellees have been evicted either actually or constructively, and insist that without such averment the complaint is insufficient.

The complaint, after alleging that Isaac S., Susannah and John W. Wright, on the 9th day of January, 1869, conveyed to said decedent by warranty deed a certain quarter section of land in Carroll county, Indiana, in consideration of $ 6,000 paid by him to them, and that said decedent died intestate in February, 1873, in possession and seized of said land, leaving the appellees his only heirs at law, avers that "there has been a breach of the covenants of said deed in this, to wit, that Harvey W. Wright and Charles H. Wright were, at the time and before the execution of said deed, the owners in fee of the undivided one-third of said real estate, and have continued from then to the present time to be the owners by a title superior to that of the defendants Isaac, Susannah and John W. Wright; that on the 19th day of May, 1881, in a suit between these plaintiffs and Charles H. and Harvey W. Wright for partition in this court, in a trial had upon issues formed, it was found and adjudged and decreed by the court that they were the owners of the undivided one-third of said lands and were entitled to have partition, and these plaintiffs then dispossessed and yielded to said superior title and recognized in this the said one-third, so that these plaintiffs have been compelled to surrender the title to the undivided one-third of said lands to said superior title; that these plaintiffs, by reason of said facts, are the owners of the two-thirds only of said lands."

It is not alleged, as will be observed, that the appellees had surrendered the actual possession of any portion of said premises, but it is averred that the title to an undivided one-third of the same, in a proceeding for partition, had been adjudged to be in the owners of the alleged superior title, and that the appellees recognized the right and yielded the title so adjudged.In Wilber v. Buchanan,85 Ind. 42, it was held that such judgment invests the plaintiff in such proceedings with the possession of his undivided portion, and thereby constructively evicts the defendant from the portion so adjudged to be in the plaintiff.Upon the authority of that case this complaint must be deemed to aver an eviction of the appellees from one-third of the premises.

It is next insisted that as Isaac S., Susannah and John W. had no title when their conveyance was made, the covenant was broken as soon as made, and the cause of action is, therefore, in the personal representative, and not in the heirs.This is not the rule where the heirs acquire the land and ultimately sustain damages.In such case they may maintain an action for breach of the covenant of seizin.Martin v. Baker,5 Blackf. 232;Coleman v. Lyman,42 Ind. 289;Wilson v. Peelle,78 Ind. 384.

This disposes of the objections made to the complaint, and as it must be deemed sufficient, the first and fourth assignments of errors can not be sustained.

The second paragraph of the answer averred, in substance, that the appellants, at the time of their conveyance, only owned an undivided one-third of said land and the inchoate interest of said Susannah in the residue thereof; that the parties to said conveyance intended that such interest as was owned by them should alone be conveyed, but by mutual mistake the whole was conveyed; that the grantors put the grantee in possession of the interest intended to be conveyed, and that the appellees still retain such possession, etc.

The demurrer to this paragraph alleged that the facts stated did not constitute a valid defence to the plaintiffs' cause of action, and the appellants insist that this demurrer was not in proper form, and for that reason was improperly sustained.The objection made to the demurrer is that the word valid is employed.We think this word does not affect its form or substance.If the facts averred did not constitute a valid defence, they constituted no defence at all, and as the word only expressed what was understood, it did not change the legal effect of the demurrer.The demurrer was, as we think, sufficient.

The facts averred in this paragraph constituted no defence to the action.The most that they tended to show was that the appellants were entitled to a reformation of the deed.This they did not seek, and the mere mistake itself, so long as the instrument remained unreformed, constituted no defence.Had the appellants sought and obtained a reformation, the instrument as reformed would have constituted a complete defence.King v. Enterprise Ins.Co., 45 Ind. 43.

The demurrer was, therefore, properly sustained.

The motion for a new trial embraced many reasons.Those only that are mentioned in appellants' brief will be considered.

The appellants complain of the court's charge as to what constitutes an eviction.The court instructed the jury that if, in a partition proceeding brought by Harvey W. and Charles H. Wright, against the appellees, the former were adjudged the owners of an undivided one-third of the land and the...