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Tucker v. Roach.

further alleged that the Missouri land was exchanged for Kansas land at such a price as to more than satisfy the condition for cancellation of the note and mortgage, but that appellant has refused to surrender and cancel The paragraph also concludes with a plea of

the same. payment.

In the second paragraph of the complaint the allegation is that the note and mortgage were without consideration.

The material allegations of the third paragraph are that the appellee was a feeble old man in ill health, of weak mind and in straitened circumstances, and that the appellant, with full knowledge of all the facts, in bad faith, and without any cause whatever for so doing, and for the fraudulent purpose of cheating and defrauding the appellee, instituted an unfounded action against the appellee for damages sustained in their real estate trade through and by reason of the misrepresentations of the appellee; and that afterwards, by threats and undue influence, the appellant intimidated the appellee, and on account of his old age, ill health and weak mind, induced him to execute the note and mortgage for the fraudulent purposes aforesaid.

Other pleadings were filed and the cause was submitted to a jury, who returned a verdict for the appellee. Judgment was rendered cancelling the note and mortgage and quieting title in appellee to his Hamilton county farm.

The jury, with their verdict, returned answers to interrogatories from which it appears that the verdict was based wholly upon the second and third paragraphs of the complaint.

The numerous alleged errors made under the issues. joined in the first paragraph of the complaint in relation to the pleadings, admission of evidence, and instructions,

Tucker v. Roach.

will not therefore be considered, inasmuch as the finding was for the appellant under that paragraph. The rulings, if erroneous, were harmless to him. Johnson v. Ramsay, 91 Ind. 189; Smith v. McKean, Admr., 99 Ind. 101; Barnett v. Feary, 101 Ind. 95; Bloomfield R. R. Co. v. VanSlike, 107 Ind. 480; Gebhart v. Burkett, 57 Ind. 378; Baker v. Carr, 100 Ind. 330; Ricketts v. Harvey, 106 Ind. 564; Woolery, Admr., v. Louisville, etc., R. W. Co., 107 Ind. 381; Porter v. Waltz, 108 Ind. 40; Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378.

It is contended that the third paragraph of the complaint is bad for the reasons that it shows an exchange of property between the parties; that an action for damages for misrepresentation in the trade was brought by appellant against appellee; that the dismissal of such action was a good consideration for the note and mortgage in this case, and consequently that the paragraph shows no right of action against appellant. We think counsel mistake the character of the paragraph in question. It shows an action to cancel and set aside a note and mortgage procured by fraud and undue influence. As such we think it good, and not subject to the demurrer urged against it.

It is next contended that the court erred in overruling appellant's motion for judgment on answers to interrogatories, notwithstanding the general verdict.

The answers to interrogatories were all made under issues tendered in the first paragraph of the complaint, except the last three, which are as follows:

"13th. Do you find for the plaintiff on the first paragraph of the complaint? Ans. No.

"14th. Do you find for the plaintiff on the second paragraph of the complaint? Ans. Yes.

"15th. Do you find for the plaintiff on the thirdļparagraph of the complaint? Ans. Yes."

Tucker v. Roach.

The answers to interrogatories are, therefore, not in conflict with the general verdict, and the court did not err in overruling appellant's motion for judgment upon the answers. Frazer, Exr., v. Boss, 66 Ind. 1.

It is true that the compromise and dismissal of a good cause of action constitute a sufficient consideration for the execution of a note and mortgage for the amount agreed upon in the compromise. But the jury in this case, by finding for the appellee on the second and third paragraphs of his complaint, thereby, in effect, found that the note and mortgage were without consideration, and were procured by fraud and intimidation, and, consequently, that the suit compromised was not a good cause of action, nor brought in good faith.

As to instructions asked by appellant and refused by the court, and which are applicable to evidence given under the second and third paragraphs of the complaint, we think that so far as they correctly express the law as to want of consideration or fraud and undue influence in the making of contracts, they were fully supplemented in the instructions given by the court on its own motion.

The eighteenth instruction given by the court upon its own motion is objected to for the reason that the jury were thereby instructed that they might consider evidence as to the embarrassed financial condition of appellee, for the sole purpose of "illustrating and throwing light upon the plaintiff's mental condition" at the time of the making of the alleged fraudulent contract, as stated in the third paragraph of complaint.

We think the instruction correct for the purpose to which it was expressly limited. The allegations of fraud and undue influence on the part of appellant were based, in part, upon the circumstance that the appellee, at the time of the bringing of the suit for damages against him,

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139 280

Browning et al. v. Smith et al.

and of his making the note and mortgage in compromise, was financially embarrassed. The fact that one is in straitened circumstances, added to old age and feebleness of mind and body, is certainly an element that may be taken into consideration in determining whether he was overreached in a fraudulent contract.

Similar remarks apply to the objections made by counsel to various items of evidence introduced on the trial to show the relative situations of the parties at the times of the transactions complained of.

As said in Adams v. Irving Nat'l Bank, 116 N. Y. 606, a well considered case in which the authorities are very fully referred to: "The principle which appears to underlie all this class of cases is, that whenever a party is. so situated as to exercise controlling influence over the will, conduct and interest of another, contracts thus made will be set aside."

We find no error in the record.
The judgment is affirmed.

Filed Nov. 21, 1894.

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No. 15,844.


SUPERIOR COURT.—Jurisdiction, Concurrent.-Tax Deed. — Quieting
Title.-Circuit Court.-Statute Construed.-An action to quiet title
to land held under a tax deed may be brought in the superior court.
The act of December 21, 1872, providing that such suit may be in-
stituted in the circuit court of the county where the land lies, does
not destroy the former act of February 15, 1871, conferring original
concurrent jurisdiction of such class of cases upon the superior
and circuit courts.

VARIANCE.-Amendable.—Decree.—Collateral Attack.-Quieting Title.—
Misdescription.-Where, in an action to quiet title, the land is mis-

Browning et al. v. Smith et al.

described in the complaint, but is correctly described in the decree, the decree can not, on account of such variance, be collaterally attacked, and, on appeal, such variance would be deemed amended. QUIETING TITLE.-Parties Defendant.-Omission of Lienholder as Party-Effect of Decree.-Practice.- Waiver.-Collateral Attack.The omission of the owner of the equity of redemption as a party to a suit to quiet the title to the land in controversy would not prevent the decree from operating to bar and foreclose those who were parties to the suit, and who were decreed to be barred and foreclosed; and the objection that the owner of the equity of redemption was not a party to the suit could only be taken in that cause by demurrer or by answer (not in a collateral suit), and not being so taken, the objection is waived.

SAME. Against Superior Lienholder.-Payment or Offer to Pay.-Equitable Relief.--Where a party seeks to have title quieted against superior lienholders, before he can ask the interposition of a court of equity in his behalf, he should either pay, or offer to pay, the superior lien against which he seeks to quiet title.

From the Marion Circuit Court.

E. P. Ferris, F. J. Van Vorhis, W. W. Spencer, A. C. Harris, S. Claypool, E. E. Stroup and W. E. Niblack, for appellants.

O. B. Jameson, for appellees.

DAILEY, J.-The appellants, who were the plaintiffs below, filed in the Marion Circuit Court a complaint of one paragraph in the usual form to quiet title to seven lots, numbered 114, 133, 134, 360, 361, 362 and 363, respectively, in H. R. Allen's second north addition to the city of Indianapolis. A general denial completed the issues and a trial was had, resulting in a finding and judgment for the appellees.

On May 13, 1889, the appellants took a new trial as a matter of right, and thereupon a new trial was had, likewise resulting in a finding and judgment for the appellees. Special findings and conclusions of law were rendered October 9, 1889, on which judgment was entered in favor of the appellees October 15, 1890.

No question arises on the pleadings. The only ques

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