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It is settled that equity will not intervene for the reformation of a deed which is purely voluntary, resting upon no valuable consideration whatever. Froman v. Froman, 13 Ind. 317; Randall v. Ghent, 19 Ind. 271; German Mut. Ins. Co. v. Grim, 32 Ind. 249; Winslow v. Winslow, 52 Ind.8; Schoonover v. Dougherty, 65 Ind. 463, (467.)
On the other hand, if there is any valuable consideration, no difference how small, supplemented by the consideration of love and affection, a mistake in a deed may be reformed. Mason v. Moulden, 58 Ind. 1. In that case the consideration was love and affection, and one dollar. It was said: "Elizabeth was a purchaser for a valuable consideration, and the mere inadequacy of consideration is no ground for withholding relief by way of reforming the deed, and thus giving her what she bought, and what the vendor intended to convey, and would, but for the mistake, have conveyed. * * * The case is not entirely like one where specific performance of a contract is sought. Here the vendor attempted to perform her contract, and executed a deed for that purpose. The aid of the court is required only to correct a mistake into which the parties mutually fell in the execution of their purpose,—the one to convey, and the other to receive, the title to the land.” See, also, McCaw v. Burk, 31 Ind. 56. Upon the question of the sufficiency of consideration generally, see Scott v. Scott, 105 Ind. 584, S. C. 5 N E. Rep. 397, and cases there cited.
Both the special finding of facts and the evidence show that the services rendered by appellee to his father were a part of the consideration for the conveyance to him. It is found that the services were not rendered by appellee with a view to any particular or specific compensation, other than as the father might deem proper. But if the father had refused to make any compensation at all, we know no reason why appellee might not recover a reasonable compensation from him, or from his administrator after his death. Appellee was not living with his father as a member of his family, nor was there any agreement, express or implied, that his services should be gratuitous. The father recognized the fact that appellee was entitled to some compensation for his services, and carried that recognition into the deed, and made the services a part of the consideration for the conveyance.
Having reached this conclusion, we need not inquire how far, if at all, the family arrangement, and the conveyances to the other children, might serve as a consideration for the conveyance to appellee. It is certain that appellant, having accepted her deed and the land conveyed, and holding the land in severalty, is not in a very favorable position to question the consideration for the conveyance to appellee. The father apportioned to each child the particular tract of land intended for him or her. His intention was to convey to appellee the land here in controversy, and, to consummate that purpose, furnished to the scrivener a description which he supposed was the proper description of that land. In that he was mistaken. The special finding and the evidence show that the tract intended for appellee was selected before the deed was made, and that in that selection appellee, as did all the other children, acquiesced. He consented, and agreed that the land thus selected should be the portion to be conveyed to him, upon the consideration heretofore stated. He supposed that the description furnished by the father, and inserted in the deed, was a proper and correct description of that land. In that he was mistaken; and thus there was a mutual mistake, such as a court of equity, under all circumstances of this case, will correct.
We need add nothing here to what has been said in disposing of the question raised by the demurrer to the complaint. We have examined all of the questions discussed by counsel, and are satisfied that the judgment should be affirmed.
Judgment affirmed, with costs.
(108 Ind. 130)
MOCASLAND 0. ÆTNA LIFE INS. Co.
(Supreme Court of Indiana. October 29, 1886.) 1. EQUITY-MISTAKE-DESCRIPTION OF LAND.
Where a mistake is made in the description of land intended to be conveyed, resulting from an error as to the identity of the land described, it is a mistake of fact,
and not of law. 2. SAME-MORTGAGE-FORECLOSURE.
Where a mistake in describing land mortgaged is carried into the decree of foreclosure, the mistake may be corrected by reforming
and reforeclosing the mortgage. 2. PLEADING—ACCEPTANCE OF PROPOSITION.
Where facts are pleaded showing an acceptance of a proposition, it is not neces
sary to aver an acceptance in express terms. 4. Equity-MISTAKE-VENDOR-REPRESENTATION OF VENDOR AS TO IDENTITY OF A TRACT
Where a vendor points out a specific parcel of land, and represents that it is described in a particular way, the vendee has a right to rely upon such representa
tion. 5. STATUTE OF FRAUDS-SALE OF LAND-PART PERFORMANCE-CONDITIONAL DELIVERY OF
Where a contract for the sale of land is so far executed as to deliver a deed upon condition, it is taken out of the statute of frauds when the condition is fully performed.
Appeal from Sullivan circuit court.
John C. Briggs and Wm. C. Hulty, for appellant. Beasley & Williams and Hays & Hays, for appellee.
ELLIOTT, J. The complaint of the appellee seeks to reform a deed, and to quiet title to the land which the grantor intended to convey. It is contended by the appellant that the complaint is bad, because it shows a mistake of law, and not of fact. The mistake is shown to have been in the description of the land intended to be conveyed, and such a mistake, while in some cases one of law, is generally one of fact. The office of a description in a deed is not to identify the land, but to supply the means of identification. Rucker v. Steelman, 73 Ind. 396. Where, therefore, a mistake is made in describing land, it is a mistake as to the identity of the land, and the question of identity is one of fact, and not of law. But we need not further discuss this question; for in the careful opinion of ZOLLARS, J., in Baker v. Pyeatt, ante, 112, (this term,) it is fully discussed and set at rest. The rule is, of course, the same whether the instrument is an absolute deed or a mortgage.
Where a mistake in the description of mortgaged lands is carried into the decree of foreclosure, it may be corrected by reforming and reforeclosing the mortgage. This was expressly decided in Conyers v. Mericles, 75 Ind. 443, where the subject received full and careful consideration. That case has been often approved.
Where facts are pleaded which show an acceptance of a proposition, it is not necessary to allege in express terms that the proposition was accepted. The complaint before us shows that the proposition made by the appellant was accepted because it pleads the facts showing an acceptance.
Where a party points out a specific parcel of land to another, and represents that it is described in a particular way, the party to whom the statement is made has a right to rely upon it. As we have said, the question of identity is generally one of fact, and it certainly is so where the party points out the land, and represents that it is covered by a particular description.
The appellee had, as we have seen, a right to reform and reforeclose its mortgage; and a promise made upon an agreement not to sue for a reformation and foreclosure is founded on a sufficient consideration. Where a promise is so far executed as to deliver a deed under it conditionally, it is taken out of the statute of frauds when the condition is fully performed; for, upon the performance of the condition the deed becomes effective, and the grantee is entitled to it. Judgment affirmed.
(109 Ind. 501)
SIMS 0. GAY and others.
(Supreme Court of Indiana. November 19, 1886.) 1. COURTS-JURISDICTION-PRESUMPTION.
Where the record is silent as to whether notice was or was not given, the presump
tion is in favor of the jurisdiction of a court of general jurisdiction.' 2. STATUTE OF LIMITATIONS-COLOR OF TITLE.
Where possession is taken under a judicial sale, there is color of title although
the judicial proceedings are void. 3. SAME-INFANCY.
The statute of limitations will begin to run during the existence of the disability of infancy, but a period of two years after the removal of the disability is allowed
in which to bring the action. 1. SAME-TACKING ONE DISABILITY TO ANOTHER.
The disability of coverture cannot be tacked to the disability of infancy; for,
when once the statute begins to run, nothing will stay its course. 6. WILLIMITATION OF ESTATE-WIDOWHOOD.
Where an estate is devised to a widow during widowhood, it is a limited estate, and terminates upon the widow's marriage. Appeal from Marion superior court. Darley & Pickerill and McMaster & Boice, for appellant.
ELLIOTT, J The questions in this case arise on the ruling denying the appellant a new trial; and it is unnecessary to notice the pleadings further than to say that the complaint is for the recovery of real property.
The trial court, over the objection of the appellant, admitted in evidence the record of the proceedings in the matter of the petition of the executor of the last will of William Nugent to sell the testator's real property to pay debts. We think there was no error in this ruling. It is true that this record does not show that the appellant, who was a daughter of William Nugent, was notified of the petition; but, as our cases uniformly hold, the presumption is in favor of the jurisdiction of the court, and, where the record is silent, jurisdiction will be presumed. In the early case of Horner v. Doe, 1 Ind. 130, it was said: “Where the record discloses nothing upon the point, jurisdiction of the person and of the subject matter will, the contrary not being proved, be presumed in cases of domestic judgments of courts of general jurisdiction where they come collaterally. in question.” In support of this doctrine many cases are cited, and it has been sanctioned by this court in a great number of cases. Doe v. Smith, 1 Ind. 451, 459; Doe v. Harvey, 3 Ind. 104; Alexander v. Frary, 9 Ind. 481; Waltz v. Borroway, 25 Ind. 380; De Quindre v. Williams, 31 Ind. 444; Hays v. Ford, 55 Ind. 55; Dwiggin v. Cook, 71 Ind. 580; State v. Ennis, 74 Ind. 17; Nes v. Watson, 76 Ind. 359-361; Crane v. Kimmer, 77 Ind. 215, 219.
But there are other rules which apply here. One of these is thus stated: “Where a court of general jurisdiction assumes jurisdiction, the existence of all facts necessary to confer jurisdiction are presumed to exist.” Jackson v. State, 104 Ind. 516 and cases cited page 516; S. C. 3 N. E. Rep. 863. Another case thus states the rule: “Where the record does not show the contrary, nor what notice was given, it will be presumed that the proper notice was given." Albertson v. State, 95 Ind. 370. In the case of Exchange Bank v. Ault, 102 Ind. 328, S. C. 1 N. E. Rep. 562, it was said: “In considering such questions every presumption is indulged in favor of the validity of the judgment or decree sought to be impeached.” Many cases sustain this general doctrine. Pickering v. State, 106 Ind. 228, vide authorities cited page 230; S. C. 6 N. E. Rep. 611; Cassady v. Miller, 106 Ind. 69; 8. C. 5 N. E. Rep. 713. The court, having general probate jurisdiction, is a court of superior jurisdiction, so that the case is fully within the rule. Doe v. Smith, 1 Ind. 451; Powell v. North, 3 Ind. 392. Another rule which applies here is this: Where a court has authority to determine the facts essential to its jurisdiction, its decision that it has jurisdiction cannot be collaterally impeached. Evansville v. City of Evansville, etc., Co., 15 Ind. 395; De Quindre v. Williams, supra; Jackson v. State, supra, and cases cited; Pickering v. State, supra, 231; Spencer v. McGonagle, 8 N. E. Rep. 266, (September 21, 1886.)
1 See O'Brien v. Gaslin, (Neb.) 30 N. W. Rep. 274, and note. "See Swift v. Mulkey, (Or.) 12 Pac. Rep. 76, and note.
*See Johnson v. Filson, (I11.) 8 N. E. Rep. 318; Safford v. Stubbs, (IN.) 7 N. E. Rep. 653; Kirkgey v. Cole, (Ark.) 1 S. W. Rep. 778.
In this case the record does not show that notice was not issued and served, and it does appear that the court assumed jurisdiction and entered a final judgment, and this is a decision of jurisdictional questions, for it is well settled that it is not necessary to enter a formal order asserting jurisdictional authority. Platter v. Board, etc., 103 Ind. 360, S. C. 2 N. E. Rep. 544, and cases cited; Carr v State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Jackson v. State, supra, vide page 520. Tested by these rules, it would seem that the record was not only competent evidence, but that it was evidence conclusive in its character. It is, however, not necessary for us to decide, at. this point, that it was conclusive; for it is sufficient to decide that it was competent, and this it clearly was, because, if it did not do much more, it at least proved color of title. It is well settled that where there is a judiciai proceeding, although void, under which possession is taken, it will constitute color of title. Wright v. Kleyla, 104 Ind. 223; S. C. 4 N. E. Rep. 16; Brenner v. Quick, 88 Ind. 546, 552; Brauman v. Grubbs, 26 Ind. 419; Doe v. Hearick, 14 Ind. 242; Van Cleave v: Milliken, 13 Ind. 105; Bell v. Longworth, 6 Ind. 273.
The proceedings for the sale of the land in controversy were begun in October, 1825, and in October, 1826, the deed executed pursuant to the order of the court was confirmed. The appellant's right of action, therefore, accrued in 1826; and, as the appellee's grantor had at least color of title, the statute of limitations will run unless there is some bar. The only hinderance to the running of the statute was the infancy of the appellant, but that disability was removed more than 40 years before the action was brought. When that disability was removed, she had a right to bring her action within the statutory period; and, having failed to do so, she is barred. It is a mistake to suppose that the statute does not begin to run during the existence of the disability, for it does begin, whether a disability exists or not; but, where there is an existing disability, a period of two years after its removal in which to sue is allowed by our statute. Wright v. Kleyla, supra; Barnett v. Harshbarger, 105 Ind. 410; S. C. 5 N. E. Rep. 718; Wright v. Wright, 97 Ind. 444; White v. Clawson, 79 Ind. 188. The appellant, it is true, married during nonage, but this does not affect the question, because one disability cannot be tacked to another. When the statute once begins to run, nothing stays its course. Knippenberg v. Morris, 80 Ind. 540; White v. Clawson, 79 Ind. 188; Kistler v. Hereth, 75 Ind. 177; Wood, Lim. p. 491, § 251; Ang. Lim. (6th Ed.) § 197.
The will of William Nugent authorized his widow to appoint an assistant to aid her in the discharge of the duties of the trust of executing the will. She did appoint an assistant, and he, as it appears, applied for an order to sell the land, but she joined him in reporting the deed for confirmation, and also joined in the deed. This is sufficient to estop her from asserting, as against her grantees, that all of the land was not sold. Pepper v. Zahnsinger, 94
Ind. 88; Pitcher v. Dove, 99 Ind. 175. If, however, we are wrong in holding that the appellant's mother parted with her title in 1826, still the action is barred by the statute; for the will limited the mother's estate to the period of her widowhood, and that period expired when she married her second husband, in 1829. It is settled law that an estate limited to the widowhood of a surviving wife terminates with her second marriage. Harmon v. Brown, 58 Ind. 207; Wood v. Beasley, 107 Ind. 37; S. C. 7 N. E. Rep. 331.
It would seem from the authorities, as well as upon principle, that the case is within section 210 of the Revised Statutes of 1852, but we did not deem it necessary to decide this question. White v. Clawson, supra; Wright v. Wright, supra; Souder v. Jeffries, 8 N. E. Rep. 288, (this term;) Gray v. Stiver, 24 Ind. 174; Vail v. Halton, 14 Ind. 344.
It is quite clear, on the whole record, that the judgment below is right. Judgment affirmed. (108 Ind. 85)
FORDICE V. SCRIBNER and others.
(Supreme Court of Indiana. October 28, 1886.) 1. RELEASE-PAROL EVIDENCE TO CONTRADICT.
A general receipt or release may be explained or contradicted by parol evidence; but, if it also embodies a contract, it cannot be so contradicted, especially if the
agreement be between a debtor and his creditors. 2. PLEADING-REPLY-SUFFICIENCY-DEMURRER.
A reply, to withstand a demurrer, must be good as to all the paragraphs of an
swer to which it is directed. 3. PROMISSORY NOTES-ACTION ON NOTE SIGNED IN FIRM NAME - ANSWER OF NO AU
THORITY TO SIGN.
In an action on a note signed in a firm name, an answer by the administrator of one partner that the note was executed by the other partner for an individual debt, without authority and without the knowledge of the deceased partner, is not bad for failing to aver that the firm had not assumed the debt, as this, if true, would be
matter for reply. Appeal from Floyd circuit court. John H. Stotsenburg, for appellant.
ZOLLARS, J. This action by appellant is against Benjamin F Scribner and the administrator of the estate of Horatio Scribner, deceased. It is alleged in the complaint that in 1872 Benjamin F. and Horatio Scribner, by their firm name of Scribner & Son, executed to H. N. Devol three promissory notes for the aggregate amount of $1,200, which, after maturity, were assigned to appellant. The fourth paragraph of answer by the administrator is, in substance, that in 1877 the payee, Devol, and before he had assigned the note, for a valuable consideration, fully and entirely released and discharged Benjamin F. Scribner, who was jointly liable upon the notes with the decedent, Horatio Scribner, from all liability upon and on account of the notes, and thereby released the decedent. A copy of the so-called release, which is more a contract for a release, is filed with the answer, as a part of it, and is as follows: "In order to save ourselves the expense and costs of bankruptcy proceedings against Gen. Benjamin F. Scribner, and to save him also from the mortification thereof, authorize him to transfer and set over to Salem Town all the stock of drugs and medicines, (except the amount which is allowed by the bankrupt law,) who shall proceed to sell such stock at public or private sale, as soon as possible, and divide the net proceeds pro rata among us; and we, and each of us, agree, in consideration of such transfer, to fully and completely release and discharge the said Scribner from his said indebtedness to us, and each of us, and to execute formal releases of such indebtedness to him at any time; he paying the expense of such release, if any. We will execute said releases as soon as said transfer is made to said Town.”