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After his departure, and before the note in suit was executed, his wife, and the mother of these parties, died. If he had been dead, as supposed, appellee, as one of his heirs, would have been the owner of the undivided one-eleventh part in value of the lands. Acting upon the belief that he was dead, and that she was therefore such owner, she sold that interest to appellant, and executed to him a quitclaim deed without covenants of warranty. He paid a small part of the agreed purchase price in cash, and gave his note, being that in suit, for the balance. Jesse Fleetwood had no knowledge that such a deed had been executed until after his return, never recognized it as of any force, and, as already stated, took possession of the lands, excluded appellant therefrom, and sold them. It is alleged that the supposed death of Jesse Fleetwood was the controlling fact that induced the sale and purchase; that, if the parties' had known that he was alive, appellee would not have sold, nor attempted to sell, any supposed interest in the lands, and appellant would not have purchased, or given the note; that the whole transaction, including the execution of the note, was the result of a mutual mistake of fact; and that, therefore, as appellant got nothing, appellee should not be allowed to collect the note. Appellant, with the answer, tendered a quitclaim deed to appellee for the interest described in her deed to him.
It seems to us that this paragraph of answer makes a clear case of a mutual mistake of fact, and a mistake as to a fact that underlies the whole transaction. Had Jesse Fleetwood been dead, appellee would have owned an interest in his lands which she might have conveyed so as to transfer to her grantee a thing of value. As it was, she owned no interest at all in the lands that she could convey. She parted with nothing by the attempted conveyance, and appellant got absolutely nothing for the cash he paid and the note in suit. The deed executed by appellee, as we have seen, was a quitclaim, without covenants of warranty; but we are unable to understand how that fact can deprive appellant of the defense set up in the answer under consideration. The defense is not based upon the deed, but upon a fact back of it, -upon the mutual mistake of the parties which lead to its execution, and to the execution of the note. But for that mistake, neither instrument would have been executed. The mistake was thus in relation to a material fact. That appellant was mistaken as to that fact was not the result of any negligence on his part. Jesse Fleetwood had been absent and unheard of for such a length of time that for some purposes he was presumed to be dead. Rev. St. 1881. & 2232 et seq.; Acts 1883, p. 209. In any event, the parties were not negligent in believing him to be dead, and in acting upon that belief. We feel quite secure in holding that upon the facts set up in the answer, which the demurrer adınits are true, appellant should not be compelled to pay the note.
Judge Story, in his work on Equity Jurisprudence, at section 140 of volume 1, says: “The general rule is that an act done, or a contract made, under a mistake or ignorance of a material fact, is voidable and relievable in equity.” In section 141 of the same volume of the work, he gives the following example: “A. buys an estate of B., to which the latter is supposed to have an unquestionable title. It turns out, upon due investigation of the facts, unknown at the time to both parties, that B. has no title; as if there be a nearer heir than B., who was supposed to be dead, but is in fact living. In such a case, equity would relieve the purchaser, and rescind the contract." Another example of the application of the rule is given in section 143a, as follows: “So, if a horse be purchased, which is by both parties believed to be alive, but is, at the time of the purchase, in fact dead, the purchaser would, upon the same ground, be relieved, by rescinding the contract if the money was not paid, and, if paid, by decreeing the money to be paid back.” The doctrine of this learned author, as contained in the sections cited, and in other sections, and our conclusion in this case, are fully sustained by our own cases. Lewellen v. Garrett, 58 Ind. 442; Brown v. College Corner & R. G.
R. Co., 56 Ind. 110; Worley v. Moore, 97 Ind. 15; Solinger v. Jewett, 25 Ind. 479,
Counsel for the appellee cite the cases of Shuler v. Hardin, 25 Ind. 386, and Atherton v. Toney, 43 Ind. 211. The latter case was one where a party purchased an equity of redemption, received a quitclaim deed, and executed his note for the purchase money. He bought the outstanding mortgage, and undertook to set it off against his note given for the land. It was held that in the absence of a special contract, or without some special circumstances, the purchaser should be held to have taken the land charged with the incumbrance; that to hold otherwise would be inequitable, as it would enable the purchaser to take from the vendor the equity of redemption, without paying him therefor. The case of Shuler v. Hardin is similar. Manifestly those cases are so different from that before us, that the rulings there are not controlling here, as against appellant's answer. Those cases were correctly decided upon principles of equity, and there is nothing in the decisions that in any way conflicts with our conclusions in this case. Indeed, the principles of equity which underlie the decisions there made require the ruling we make here. It results from what has been said that the court below erred in sustaining the demurrer to the second paragraph of appellant's answer.
Judgment reversed, with costs, and cause remanded, with instructions to the court below to overrule the demurrer to that paragraph of answer.
(108 Ind. 397)
BRUNER 0. PALMER.
(Supreme Court of Indiana. December 9, 1888.) 1. FENCES-AGREEMENT TO “KEEP Up"-DEFAULT - STATUTORY ASSESSMENT OF Dau
AGES-REV. ST. IND. 1881, 84848.
The fact that adjoining land-owners have agreed that each shall keep up certain specified portions of a partition fence does not prevent a resort to the statutory
method for assessment of damages against the party in default. 2. SAME-ASSESSMENT OF DAMAGES—NOTICE.
A written notice to assess damages for failure to keep up" a partition fence, informing the party in default that, on a day and at an hour named, the plaintiff would call upon two disinterested freeholders to examine all of the partition fences" between the lands of the parties “in Daviess county, state of Indiana, and assess the amount that may be required to make said fences sufficient and lawful fences, if
they are insuficient,” is sufficiently definite. 3. SAME-EVIDENCE-WRITTEN ASSESSMENT.
A paper shown to be the assessment of the appraisers in such case is admissible in evidence, although not signed by them. Appeal from circuit court, Daviess county.
J. C. Billheimer and John Downey, for appellant. John Baker, for appellee.
MITCHELL, J. Josiah C. Palmer and Richard Bruner, being adjoining landowners, agreed that each should maintain and keep in repair certain specified portions of a partition fence on the line dividing their lands. Palmer charged, in a complaint filed against Bruner, that, while he faithfully performed his part of the agreement, the latter wholly failed, neglected, and refused to maintain in repair that part of the fence allotted to him under the agreement, but permitted it to go into decay, so that it became insufficient to protect the crops of each from invasion by the animals of the other. The complaint averred that the plaintiff thereupon caused notice to be served upon the de fendant, to the effect that at a specified hour, on a day named, more than three days from the date of such notice, he would call upon two disinterested freeholders to examine the fence, and, if found insufficient, assess the amount required to make it sufficient. It is charged, further, that, at the time fixed, an examination and assessment were made by the persons selected, who as.
sessed the amount required at $84.02; and that, the defendant failing for more than 15 days thereafter to make the required repairs, the plaintiff made them at a cost of $84.
The appellant predicates error on the ruling of the court in overruling a demurrer to this paragraph of the complaint. The argument is that because the parties agreed, as appears from the complaint, that each should keep in repair the whole of certain portions of the fence, the statutory remedy which the plaintiff below sought the benefit of was not available. In such a case, it is said, the only remedy for the party aggrieved is by an action for damages for a violation of the agreement. This result is said to follow from a proper construction of the last clause of section 4848, Rev. St. 1881, which reads as follows: "Except when otherwise specifically agreed, partition fences dividing lands occupied on both sides shall be maintained, throughout the year, equally by both parties.” An examination of this statute leads us to a different conclusion.
In the absence of an agreement by the adjoining proprietors concerning the character of the fence, or in respect to the particular part thereof to be maintained by each, the statute requires that a lawful partition fence shall be maintained throughout the year by both. In such a case each would be required to contribute a just proportion to the maintenance of the whole. Either may repair the whole if the other refuses as to his proportion, and enforce contribution for the share of the other by the statutory method. The statute, however, permits the parties interested to agree upon certain modifications as to the character of the fence; as that it shall only be sufficient to restrain horses, mules, or cattle. By clear implication they may also agree that, instead of both maintaining the whole fence jointly, each shall maintain the whole of such portion as may be agreed upon separately. In either event the statutory method for the assessment of damages against the party in default is applicable. That one land-owner, who sustained damage by the failure of the other to perform an agreement of the character of that in question, might maintain a common-law action for damages resulting from the violation of the agreement, may be conceded. It does not follow that the statutory method of ascertaining the amount required to make the fence sufficient may not also be resorted to in a proper case.
In respect to so much of the argument on the appellant's behalf as seeks to demonstrate that the verdict is contrary to the evidence, and that it is contrary to law, waiving the point that the objections are too general to require notice, all that need be said is that an examination of the record discloses an abundance of evidence, properly admitted, which, if believed by the jury, sustains the verdict of $65 in favor of the plaintiff below, and shows that it is neither contrary to the evidence nor to the law.
The notice, which was adinitted in evidence, informed the defendant below that, on a day and at an hour named, the plaintiff would call upon two disinterested freeholders “to examine all of the partition fences between my land and your land, in Daviess county, in the state of Indiana, and assess the amount that may be required to make said fences sufficient and lawful fences, if they are deemed insufficient.” The objection made to the notice is that it does not state with sufficient certainty where the freeholders are to meet, and that it does not describe with sufficient definiteness the fence to be repaired or rebuilt. The purpose of the statute, as it seems to us, was to furnish a method free from unnecessary technicalities, and readily available to the use of persons for whose benefit it was designed, by which to convey notice of the insufficient condition of a partition fence, and of the intention of the party giving the notice to proceed to ascertain the cost of putting the fence in repair, in the event the person notified should fail to make the repairs within 15 days. The notice was sufficiently definite for all the purposes for which it was intended.
The persons called upon to examine the fence, and assess the amount required to make it sufficient, made an informal but detailed statement in writ ing, showing the number and cost of rails required, and the value of labor necessary to put the defendant's part of the fence in repair. This paper was identified as the assessment made by the appraisers, and admitted in evidence. It was not signed, and it is now claimed that its admission was on that account improper. The assessment is, in a sense, the foundation of the action. It affords prima facie the basis of the plaintiff's recovery. Unless, there fore, the fact that the assessment under consideration was not signed rendered it incompetent, it was properly admitted in evidence. The statute does not in terms require that the assessment should be signed; and considering that the proceeding was manifestly intended to be applied by plain men, without professional aid, technical objections are not to be favored. The statute was satisfied by proof that the paper in question contained the actual assessment made by the appraisers; and, as it contained an intelligent statement of the assessment made, no rule of evidence was violated by admitting the paper in evidence after it was so proved. Saunders v. Heaton, 12 Ind. 20.
The judgment is affirmed, with costs.
(108 Ind. 281)
HENRY, Adm'r, etc., 0. STEVENS.
(Supreme Court of Indiana. November 22, 1886.) 1. LANDLORD AND TENANT-LEASE-RENT-DEATH OF LIFE-TENANT LESSOR- Rev. Sr.
IND. 2 5223.
Upon the death of a life-tenant lessor, the rent, although payable as an entirety, may be recovered, under Rev. St. Ind. 5223, down to the termination of the life
estate. 2. SAME-ACTION BY ADMINISTRATOR.
The statute gives a right to recover rent accruing before the death of a life-tenant who has denised land, although the rent was payable as an entirety, but all the rent that can be recovered by the administrator is that which accrued prior to the
death of the lessor. 3. PLEADING-How JUDGED—SPECIFIC ALLEGATIONS OF TITLE.
A pleading is to be judged by its general scope and tenor, and specific allegations
of title will control general averments. 4. FRAUDULENT CONVEYANCES-VALIDITY BETWEEN GRANTOR AND GRANTEE.
A conveyance of land made to defraud creditors is valid between the grantor and
grantee. 6. EVIDENCE-DEED-PAROL EVIDENCE.
Parol evidence is not admissible to contradict the conveying part of a deed. 6. ESTOPPEL-GRANTOR AND GRANTEE-ADVERSE POSSESSION.
The continued possession of a grantor cannot be adverse to his grantee. Appeal from Fayette circuit court. Action on promissory note. Conner & Frost, for appellant. Chas. Roehl and J. J. Littell, for appellee.
ELLIOTT, J. This action was commenced by the appellee before a justice of the peace, and is founded on a promissory note executed by the appellee to James D. Stevens, guardian of Wells Stevens. The appellee filed an answer, alleging that the note was executed in payment of rent due the ward of appellant; that the rent for which the note was executed was for the term of one year; that, before the expiration of the year for which the land was demised, Wells Stevens died; that he was the owner of a life-estate only, in the land; that this estate terminated at his death; that the plaintiff was entitled to the rent which accrued prior to his death, to-wit, $120, and that of this sum the defendant had paid $100. For the rent unpaid the defendant offered to confess judgment. T'he case was certified to the circuit court; and there the appellee filed a reply, setting forth, in substance, these facts: That on the sixth day of April, 1861, Wells Stevens executed to the defendant a deed
for the land in controversy; that the deed was executed for the purpose of defrauding the grantor's creditors; that it was the agreement between the parties that no title to the land should pass by the deed; that Wells Stevens had open and notorious possession of the land at the time the deed was executed, and held such possession, under claim of title, until the day of his death; and that the defendant never had any interest in the land.
We think the court did right in sustaining a demurrer to this reply. It is not good as a denial, for it is well settled that a general allegation of title is controlled by the specific facts pleaded, and that a pleading is to be judged from its general scope and tenor, and not by the fugitive denials cast into it. Reynolds v. Copeland, 71 Ind. 422; Neidefer v. Chastain, Id. 363; S. C. 36 Amer. Rep. 198; W. U. Tel. Co. v. Reed, 96 Ind. 195, and authorities cited page 198; Pennsylvania Co. v. Marion, 104 Ind. 239; S.C.3 N. E. Rep. 874; Louisville, etc., Co. v. Schmidt, 106 Ind. 73, see page 74; S. C. 5 N. E. Rep. 684.
It is not good because of the averment that the deed was executed to defraud creditors, for it is perfectly well settled that a fraudulent conveyance is valid between the parties. Second Nat. Bank v. Brady, 96 Ind. 498; Edwards v. Haverstick, 53 Ind. 348; State Bank v. Davis, 4 Ind. 653.
It is not aided by the averment of the mutual agreement between the parties, because the conveying part of a deed cannot be overthrown by parol evidence. Bever v. North, 8 N. E. Rep. 576, (October 5, 1886.)
It is not made good by the general allegation of possession, because the continued possession of a grantor cannot be adverse to his grantee. Ronan v. Meyer, 84 Ind. 390; Record v. Ketcham, 76 Ind. 482; Rowe v. Beckett, 30 Ind. 154.
At common law where the rent was payable as an entirety, and the demise was by the owner of a life-estate, his death terminated the right to recover any rent at all; but this rule is so changed by statute as to permit a recovery of the rent which accrued prior to the lessor's death. Tayl. Landl. & Ten. § 839; Rev. St. § 5223.
All that the appellant was entitled to recover was the unpaid rent which had accrued prior to the death of Wells Stevens. Judgment atfirmed.
(107 Ind. 442)
(Supreme Court of Indiana. November 22, 1886.) 1. WITNESS-COMPETENCY OF WIDOW IN AN ACTION FOR CAUSING HUSBAND'S DEATH.
A widow is a competent witness in an action brought by the administrator of her deceased husband to recover for an injury causing his death, inflicted by the nego
ligence of a railroad company on whose train he was passenger. 2. EVIDENCE-CIRCUMSTANTIAL EVIDENCE IN CIVIL CASES.
In civil cases it is sufficient if the circumstantial evidence of the plaintiff, on the
whole, agrees with and supports the hypothesis which it is adduced to prove. 3. CARRIERS-PASSENGER-PRESUMPTION.
A person on a train used for carrying passengers is, in the absence of countervail
ing circumstances, presumed to be a passenger. 4. EVIDENCE-PRESUMPTIONS-FAILURE TO EXPLAIN.
Where a party has in his power the means of explaining or rebutting evidence offered against him, his failure to give an explanation furnishes a strong inference against him. Appeal from circuit court, Washington county. On petition for rehearing. See 8 N. E. Rep. 18. Alspaugh & Lawler, for appellant. Zaring, Voyles & Morris, for appellee.
ELLIOTT, J. An earnest and able petition for rehearing has been filed, and it is thought proper to again discuss some of the questions argued. We said in our former opinion that, even if it were conceded that the widow of