Fleetwood v. Brown

Zollars, J. This action is by appellee upon a promissory note, executed by appellant. The first alleged error, argued by appellant, is the sustaining of a demurrer to the second paragraph of his answer. That paragraph may be summarized as follows: [568] In 1879, Jesse Fleetwood, the father of the parties hereto,, was the owner of two hundred and forty acres of land in: Jackson county, and was a resident of that county, where-also his wife and children, including the parties hereto, resided, and have still resided. In that year, Jesse Fleetwood abandoned his family and property and left the State, and his whereabouts was unknown to the parties hereto, and to-the other members of his family, until he returned in June,. 1885. Upon his return, he took possession of his lands, excluding others therefrom, and afterwards sold the lands. In September, 1884, at the time the note in suit was executed, for a long time prior thereto, and afterwards, until his return in June, 1885, the parties hereto, and the balance of the family supposed and believed that he was dead. After hi® departure, and before the note in suit was executed, his wife, 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, appelleewould not have sold, or 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 [569] 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 dear-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 defence set up in the answer under consideration. The defence is not based upon the deed, but upon a fact back of it—upon the mutual mistake of the parties which led 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. R. S. 1881, section 2232, etseq.; 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 admits 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. [570] ■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 should 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 (26 Am. R. 74); Brown v. College Corner, etc., G. R. Co., 56 Ind. 110; Worley v. Moore, 97 Ind. 15; Solinger v. Jewett, 25 Ind. 479. Counsel for 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 mote for the purchase-money. He bought an 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 encumbrance ; 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, supra, is similar. Manifestly, those cases are so different from that before us, •.that the rulings there are not controlling here, as against [571] 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. Filed Nov. 20, 1886. 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.