Bell v. . McCoin

Stacy, J. As now advised, we see no reason why the deed in question should not be canceled by order of court, if it should ajjpear, as alleged, that the same was executed under a misapprehension of the facts, and that the provisions of the trust thereby created have proven to be ill-advised, improvident, and impossible of fulfillment; and further, that such a cancellation would be to the best interest of all concerned— resulting in preventing an irreparable loss — but,,on the instant record, we must remand the cause, to the end that the facts may be found or established. It is evident that the learned judge signed the present decree with the impression that the material facts were admitted either in the pleadings or on the hearing, but this does not so appear from the answer of the guardian ad litem, and he does not seem to have made any admissions at the hearing, nor does it appear that the defendant McCoin, trustee, made any admissions at the hearing, other than those contained in his answer, which are not sufficient to warrant a finding of the facts as alleged. Ewing v. Wilson (Ind.), 19 L. R. A., 767, and note; 26 R. C. L., 1208. It appears that J. E. C. Bell, formerly the husband of Mabel K. Bell, has been made a party plaintiff to this action; and that all necessary parties who possibly could have any present interest in the property are properly before the court and asking for the relief sought. Remanded.