Easter v. Severin et al.

lant, who, at the time of receiving his deed therefor, well, knew that the appellees' mortgage was intended by all the parties thereto to cover and include the said real estate; that the appellant took his said deed from said Starr and wife with full knowledge of the mistake and inaccurate description in said mortgage; that the appellant paid no present consideration for said real estate when said deed was made to him, but that he took said land on an indebtedness of said Adam Starr to him, and well knew that the appellees held a mortgage which was intended by all the parties thereto to include and embrace the said first described real estate, and no other. Wherefore the appellees asked that said mortgage be reformed, and the description of the real estate therein be corrected, as first set out and described in said complaint; and, when so corrected, that the said mortgage be foreclosed and the real estate be ordered to be sold to satisfy the sum found to be due on said note, and for all other proper relief.

Did this amended complaint state sufficient facts, in regard to the alleged mistake in the mortgage in suit, to entitle the appellees to a correction of such mistake and a reformation of the mortgage, as against the appellant? This question is fairly presented for decision by the alleged error of the court in overruling the appellant's demurrer to the complaint. When this case was first here, the court said: "It seems to us, that the appellees' mortgage can not be foreclosed as against the appellant, or against the land owned by him, until it has been so reformed by the judgment of the proper court, that it will cover the specific land which, the appellees allege, it was intended to cover thereby. If, by the mutual mistake of all the parties to such mortgage, as to any matter of fact, the lots or lands intended to be embraced in the mortgage were not embraced therein, the appellees might, perhaps, upon a proper showing of the facts in regard to such mistake, obtain a reformation of the mortgage, so that it would contain a correct description of such lots or lands. Upon proper

Easter v. Severin et al.

allegations of such mutual mistake, in their complaint in this action, the appellees might, perhaps, have obtained a judgment for the reformation of the mortgage, the correction of the description of the mortgaged property, and for the foreclosure of the mortgage as reformed, and the sale of the property by the corrected description thereof."

When the cause was remanded, the appellees acting, probably, upon the suggestions quoted from the former opinion of this court, filed the amended complaint, a summary of which we have given. It is earnestly insisted by the appellant's counsel that this amended complaint fails to show, by the facts alleged therein, such a mistake in the mortgage in suit as a court of equity will correct, and reform the instrument. Counsel says: "The appellees do not aver that they were ignorant of any fact; for aught that is shown by the pleading, all the parties to the mortgage knew the exact situation, location and condition of this strip or parcel of land, and its relation to the town of Benwood; knew at the time they drew the mortgage that the strip had not been platted, numbered or recorded, or anything done to constitute this strip, thus divided into three parcels, town lots. But did not their mistake arise out of the fact that they were ignorant of what it took in law to constitute a town lot? and did they not, purposely and intentionally, insert in the description in the mortgage the language, 'three town lots in the town of Benwood,' believing and understanding that that description would identify and pass the title to this strip of land; that by such description they could create a mortgage on this strip or parcel of land, near Benwood? The mistake they made was as to the legal effect of the description inserted. They nowhere aver that they intended to insert any other or different description; that they formulated any other description, and that the draftsman, by mistake, inserted any different description from that which they gave him. In a word, they do not aver that 'anything was omitted in the mortgage that was directed VOL. 78.-35

Easter v. Severin et al.

to be inserted, or that anything was inserted contrary to the direction of the parties.''

These are the points made by the appellant's counsel, in argument, and it seems to us they are well made. The mortgage in suit, for aught that is alleged in the amended complaint, contains the precise description of the real estate which the parties intended, at the time of its execution, it should contain. "The mistake, then, if any was made, was a mistake of law as to the legal effect" of the mortgage as executed. Nelson v. Davis, 40 Ind. 366. In Allen v. Anderson, 44 Ind. 395, the allegations in the pleading under consideration were similar to those in the complaint in this case, and the court there said: "The mistake must be one of fact, and not of law. It must be shown that words were inserted that were intended to have been left out, or that words were omitted which were intended to be inserted." And further, "It appears to us that there was a greater mistake of law than of fact. It is not alleged that the parties were ignorant of what was in the deeds." To the same effect, substantially, are the following cases in this court: Baldwin v. Kerlin, 46 Ind. 426; The First National Bank, etc., v. Gough, 61 Ind. 147; Toops v. Snyder, 70 Ind. 554.

In the case at bar, it is not pretended or claimed in the amended complaint, that all the parties to the mortgage in suit did not know, at the time of its execution, the exact language used therein. But they have since discovered that Adam Starr did not own any real estate embraced in or covered by the description used in the mortgage in suit. Therefore the appellees have asked, in their complaint, not to correct the description in the mortgage, but to strike it out, and, in lieu thereof, to insert in such mortgage a description which does not cover any lots or lands in the town of Benwood, but will embrace some real estate near that town. The mistake stated in the amended complaint can not be regarded, therefore, as a mistake as to any matter of fact, but only as to the legal effect of the language used in the mortgage. We do not understand it to be the province of a court of equity, or that

Shaw, Adm'r, v. Ferguson et al.

it has the power, to relieve parties from the effects of such a mistake, in the manner and to the extent asked for by the appellees in their amended complaint.

We are of the opinion, therefore, that the court erred in overruling the appellant's demurrer to the amended complaint.

Our conclusion in regard to the insufficiency of the amended complaint, in this case, renders it wholly unnecessary, and perhaps improper, for us to consider now and pass upon any of the questions presented and discussed by counsel, under the alleged error of the court in overruling the motion for a new trial.

The judgment is reversed, at the appellees' costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

ELLIOTT, C. J., and WOODS, J., dissent.

No. 8203.

SHAW, ADM'R, v. FERGUSON ET AL.

LIEN.--Factor.-One who carries on the business of slaughtering hogs, and curing, storing and selling the product, as well for himself as for others, and makes advances to such customers, continuously holding possession of their product until he sells it, is a factor, and has a lien on the product of the customer, for services and advances. SAME.-Measure of Damages. Where a factor sells the property of his principal on which he has a lien for services and advances, he may retain the amount of his lien, out of the proceeds, whether the sale be authorized or tortious, and he is liable (no question being made about the price obtained) only for the balance. PRACTICE.-Evidence.-Harmless Error.-The erroneous admission of evidence, and allowing an incompetent witness to testify, are not available error, if it appear affirmatively by the special findings of the court that the evidence thus improperly admitted had no effect whatever upon the result of the trial.

From the Marion Superior Court.

Shaw, Adm'r, v. Ferguson et al.

D. V. Burns and H. Burns, for appellant.

B. Harrison, C. C. Hines, W. H. H. Miller, T. A. Hendricks, C. Baker, O. B. Hord and A. W. Hendricks, for appellees.

WORDEN, J.-Action by the appellant against the appellees to recover the value or proceeds of certain hog products sold by the defendants. The pleadings need not be stated, as no question arises upon them. Trial by the court and special finding of the facts and statement of conclusions of law, as follows:

"First. In the year 1871 the defendants were partners and the owners of a slaughtering and pork-packing establishment in the city of Indianapolis, and had for many years prior to that time been engaged in that business in that city. That said business embraced the slaughtering and dressing of hogs, and the curing, packing and selling of the products of hogs slaughtered. That said defendants slaughtered and packed hogs on their own account, and also for and on account of others, and had long established the custom and usage of advancing money to persons for whom they slaughtered and packed hogs, and of receiving from such persons compensation for slaughtering, packing and selling, and also interest on money advanced to persons for whom they, the defendants, slaughtered and packed hogs.

"Second. That the usage and custom which prevailed at the defendants' establishment was, to take the promissory notes of persons for whom they agreed to slaughter and pack hogs, for advances made on hogs to be furnished by such persons for the said defendants to slaughter and pack. That such notes as were taken by the defendants were made payable in bank. That the usage and custom of the defendants was to deduct the compensation for slaughtering, packing and selling from the proceeds realized from the sale of the products of the hogs slaughtered, and to apply the same to the payment of such notes or to pay the same to the person for whom the hogs were so slaughtered and packed.