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It remains to inquire whether the second paragraph of the reply is sufficient. Where an agent is authorized to solicit and take applications for insurance, it must be held that he is acting within the scope of his authority

that said blanks were in said application un- | fective for the reasons urged against it in filled when he signed the same, and that he this court. had fully and truly informed appellant's agent as to all said facts, and, with said knowledge, received, and has ever since retained, appellee's money paid as a premium for said insurance, and still retains the same. Wherefore, etc. This reply is sworn to by the ap-in preparing such applications; and if, in dopellee. A trial of the cause before a jury resulted in a verdict for the appellee, upon which the court rendered judgment. No motion for a new trial was filed. The assignment of errors calls in question the sufficiency of the complaint in the cause, and the sufficiency of the second paragraph of the reply.

The policy of insurance before us contains a provision to the effect that, "if the assured shall not be sole and unconditional owner in fee of said property, then this policy shall be void;" and it is contended by the appellant that the complaint is bad because it does not aver that the plaintiff was the sole and absolute owner of the property covered by the policy in suit. The complaint does aver that appellee was the owner of the property destroyed at the time the policy of insurance was issued, and at the time of its destruction. In the case of Dow v. Mining Co., 31 Cal. 649, it was said that an owner is he who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and to do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right. In the case of Converse v. Kellogg, 7 Barb. 597, it is said that ownership is the right by which a thing belongs to an individual, to the exclusion of all other persons. Without entering into a discussion as to whether these definitions are strictly accurate, in the absence of a motion to make the complaint more specific, we think that the general allegation in the complaint that the appellee was the owner of the property insured was sufficient. Insurance Co. v. Pickel, 119 Ind., 21 N. E. Rep. 546; Insurance Co. v. Rowe, 117 Ind. 202, 20 N. E. Rep. 122.

It is further urged that the complaint is defective in not setting out a copy of the application upon which the policy in suit was issued; but it is now settled in this state that it is not necessary to file a copy of the application with the complaint. Insurance Co. v. Monninger, 18 Ind. 352; Insurance Co. v. Cannon, 48 Ind. 264; Insurance Co. v. Kessler, 84 Ind. 310; Insurance Co. v. Wiler, 100 Ind. 92; Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. Rep. 582.

It is also contended that the complaint is bad in not alleging that the policy in suit was issued upon a consideration; but it does appear from the complaint, and the policy filed therewith, that the appellee executed his note for the agreed premium, which he subsequently paid. In our opinion, the complaint in controversy states a cause of action against the appellant, and is not de

ing so, he fraudulently inserts false answers to interrogatories without the knowledge or fault of the applicant, the company giving such agent employment must suffer, and not the insured, who is without fault. Pickel v. Insurance Co., 119 Ind., 21 N. E. Rep. 546, and authorities there cited. This case does not fall within the rule announced in Cox v. Insurance Co., 29 Ind. 586. It cannot be successfully maintained that a party should be required to prosecute a suit to reform an instrument of writing which was not under his control, and which he never executed. In the case of Insurance Co. v. Allen, 109 Ind. 273, 10 N. E. Rep. 85, the agent who took the application for insurance wrote therein a false description of the location of the property, without the knowledge or consent of the insured; and in commenting on that fact this court said: “If this misdescription of the location of the personal property was so written into the application, without the knowledge or consent of the plaintiffs, it was a fact which they were entitled to aver in their complaint, and prove at the trial, without asking a reformation either of the application, or of the policy of insurance issued upon it. The writing into the application the alleged misdescription in question by the defendant's agent, without the knowledge or consent of the plaintiffs, estopped the defendant from setting up such misdescription as a defense to the action. These general principles governing actions on policies of insurance are well recognized by numerous authorities." Then follows a list of authorities which we think fully sustain the language used by the court as above quoted. In our opinion, the reply in this case was sufficient. We find no error in the record for which the judgment of the circuit court should be reversed. Judgment affirmed.

(120 Ind. 459)

WESTHAFER v. PATTERSON. (Supreme Court of Indiana. Oct. 29, 1889.)

RESCISSION OF CONTRACTS-PLEADING.

Plaintiff alleged that he conveyed to defendant certain land, receiving as a consideration therefor a deed for land in Tennessee which defendveyed to him; that plaintiff's grantor derived title ant had purchased, but which had never been conto this land by a deed which was not executed and acknowledged in conformity with certain statutes might be set aside. Held, that a demurrer was of Tennessee; and prayed that his conveyance properly sustained, as plaintiff made no offer to reconvey the land he received from defendant, and as it does not appear that conformity with the statutes was essential to the validity of the conveyance to plaintiff, or that the defective acknowledgment could not be corrected.

Appeal from circuit court, Martin county;| DAVID J. HEFFRON, Judge.

Action by Francis M. Westhafer against Nathan D. Patterson to set aside a conveyance made by him to defendant. The court sustained a demurrer to the complaint, and plaintiff appeals.

Brooks & Reeve, for appellant. Mosier & Houghton, for appellee.

1. It does not appear that there is any substantial defect in the plaintiff's title to the Tennessee land. Notwithstanding the defect in the certificate of the officer before whom the deed was acknowledged, the conveyance may have transferred a perfect title as between the parties to it. As a general rule, a deed may be valid and binding on the parties who execute it, so as to pass the title to the grantee, without any certificate of ac

MITCHELL, J. The propriety of the rul-knowledgment. Fryer v. Rockefeller, 63 N. ing of the circuit court in sustaining a de- Y. 268. Generally, the necessity for an acmurrer to the complaint is the only question knowledgment arises out of registry acts, involved in this appeal. Westhafer charged which require certain formal proof of the exin his complaint that he had conveyed cer- ecution of the deed before it can be recorded, tain real estate in the state of Indiana, of in such a way as that the record shall furnish which he was the owner, to the defendant, constructive notice of its contents, so as to Patterson, and that by agreement he received affect subsequent purchasers. An acknowlas a consideration for the conveyance made edgment is therefore not, as a general rule, by him a deed of conveyance from one John essential to the validity of a deed as beM. Nickless, which purported to convey to tween the parties to it, but is only necessary the plaintiff certain real estate in the state of in order to the effectual admission of the Tennessee, which the defendant, Patterson; deed to record. Hubble v. Wright, 23 Ind. had purchased from Nickless, but which the 322; Mays v. Hedges, 79 Ind. 288; Behler v. latter had never conveyed. It is alleged that Weyburn, 59 Ind. 143; Doe v. Naylor, 2 John M. Nickless, the plaintiff's grantor, de- Black f. 32, 5 Amer. & Eng. Cyclop. Law, 443. rived his title to the Tennessee land through Ordinarily, only subsequent purchasers for a deed executed by William Nickless and value can take advantage of the omission of wife, which latter deed the plaintiff avers words of identification, or other formal dewas not executed and acknowledged in con- fects in a certificate of acknowledgment. formity with the statutes of the state of Ten- Mastin v. Halley, 61 Mo. 196; Chouteau v. nessee, certain sections of which are set out Burlando, 20 Mo. 482, 1 Amer. & Eng. Cyclop. in the complaint. These statutes require the Law, 154-158. At common law a married officer before whom a deed is acknowledged woman had no power to make a valid conto state in his certificate that he is personally veyance of her separate real estate. Her acquainted with the grantor, and also to an- power in that respect is conferred and regunex to any deed in which a husband and wife lated by statutes in the several states. Hence, join a certificate to the effect that the wife where the certificate of acknowledgment is appeared before him privately and apart made an essential feature of the conveyance from her husband, and acknowledged the of the separate estate of a married woman, deed freely, voluntarily, etc. It is alleged the form prescribed must be observed, or the that the requirements of the foregoing stat-deed will be invalid. Jordan v. Corey, 2 Ind. utes were not observed in the respects above 385; Woods v. Polhemus, 8 Ind. 60. It does mentioned, in the acknowledgnient or the not appear that the conveyance in question certificate indorsed upon or annexed to the involved the separate estate of a married conveyance from William Nickless and wife woman; and, if it did, we are not advised to the plaintiff's grantor, John M. Nickless. that the statutes of the state of Tennessee Without alleging any other infirmity in the prescribe any particular form of certificate as deed or defect in the title, the plaintiff de-essential to the validity of the conveyance manded judgment, setting aside his conveyance to the defendant, Patterson, and for general relief.

It does not appear that the plaintiff offered to reconvey the Tennessee land before the commencement of the action, nor does he offer in his complaint to do so, under the direction of the court. There is nothing to show that any request was ever made to have the acknowledgment of the deed or the defective certificate corrected by the grantors therein, nor is it averred that the grantors in that deed are asserting any adverse claim to the land, or that the plaintiff was not in the complete and quiet possession and occupancy of it at the time the suit was commenced. There are therefore at least two grounds upon which the ruling of the court in sustaining the demurrer to the complaint can be sustained.

between the parties to it. So far as appears, the statutes set out with the complaint relate entirely to the requisites of a certificate of acknowledgment as prescribed by the recording acts. Moreover, officers have the right, and it is a duty which they may be compelled at any time to perform, to correct mistakes in their certificates. Jordan v. Corey, supra; 1 Amer. & Eng. Cyclop. Law, 149. Assuming that the officer before whom the deed was acknowledged did his duty, and examined the wife separate and apart from her husband, it would follow that the informality in the certificate was the result of a mere clerical omission, which might be corrected on proper application. Fleming v. Potter, 14 Ind. 486.

2. Even though the title was defective on account of the omission in the certificate, the conveyance was not void; and, as has been

seen, it does not appear that the plaintiff of- BERKSHIRE, J. This is a proceeding unfers, or has offered, to reconvey. It is fa- der what is known as the "Drainage Act, miliar law that a party will not be permitted approved April 8, 1881, as it was amended to rescind a contract so as to reclaim what he by the act approved March 8, 1883, and which has parted with, and at the same time hold later act is found in Elliott's Supplement, beonto what he has received in the transac-ginning with section 1175. The petition was tion. Higham v. Harris, 108 Ind. 246, 8 N. filed on the 15th day of January, 1885. The E. Rep. 255, and cases cited; Patten v. Stew-specifications given in the petition for the art, 24 Ind. 332; Insurance Co. v. Howard, improvement are: (1) That public health 111 Ind. 544, 13 N. E. Rep. 103; Thompson v. Peck, 115 Ind. 512, 18 N. E. Rep. 16. So long as the plaintiff manifests a disposition to hold onto the land conveyed to him, he can acquire no standing in a court of equity to rescind the contract. There was no error. The judgment is therefore affirmed, with costs.

(120 Ind. 449)

BOHR v. NEUENSCHWANDER. (Supreme Court of Indiana. Oct. 29, 1889.) DRAINAGE

PROCEDURE-EVIDENCE-VERDICT.

will be promoted; (2) that a certain public highway therein described will be benefited; and (3) that the improvement will be of public utility. The petition was docketed as an action pending by order of the court, February 9, 1885, and on the 12th day of said month it was referred to the commissioners of drainage, and they were ordered to meet on the 14th day of said month, and to make their report to the court on the third Friday therein. On the 16th, which was two days before the time designated for the said commissioners to make their report, upon the petitioner's 1. Act Ind. April 8, 1881, as amended by act motion the court made an order extending March 8, 1883, establishing a system of drainage, the time, and designated April 28, 1885, as requires the petition to lay out a drain to be filed the day on which the report should be made. in the clerk's office, whereupon the clerk, after noting thereon the day on which it should be dock- The commissioners did not make their report eted, shall give notice thereof, after which the on that day, and had not done so on the 12th procedure shall be the same as in ordinary actions, day of May following, on which day the apunless otherwise provided. There is no special provision as to what shail constitute a discontinu- pellant moved for a judgment discontinuing ance of the proceeding, but Rev. St. § 1325, provides the petition. This motion the court overthat an action shall not be discontinued for the fail- ruled, and the appellant excepted. On the ure of the judge to attend on the first or any other following day the commissioners made their day of the term, the omission to hold any term, or the expiration of the term, with pending business report, which, on motion of the appellee, still undetermined. A petition had been referred was referred back to them, and the 26th day to commissioners, who were directed to report to of said month designated as the day when the court on a day named. Before that day the time for holding the term was changed, and no they should report. To this order the appelterm was to be held until after the time had passed. | lant made no objection. On said last-named The act changing the time contained a clause sav-day the commissioners made their report, and ing pending proceedings from discontinuance. the appellant moved its rejection, filing sevHeld, that the court could, on the request of the petitioners, fix another day for the filing of this report, and the proceeding would not be discontinued.

2. Even without the statutory provisions, the failure of the commissioners to file their report would not discontinue the proceeding, as their omission should not prejudice the petitioners.

3. It is immaterial that the commissioners did not themselves appear in court and ask further time to file their report.

4. The clerk's failure to deliver to the commissioners copies of the petition and order fixing the time at which they should file their report will not vitiate the report.

5. A witness may not state whether a creek appeared, from his examination of it, to be sufficient to drain the land in question, as the question calls for his opinion only.

6. The report of the commissioners as to the propriety of establishing the drain is not competent evidence to prove the utility of the drain, etc., as the report only embodies the opinion of the commissioners.

eral written reasons therefor. This motion. the court overruled, and he excepted. He then filed a remonstrance, alleging several causes, some of which only brought in question the sufficiency of the report, while others stated matters in bar of the petition. Upon the remonstrance being filed, the cause was submitted to the court for trial, and, after hearing the evidence, it found as follows: "The court finds for the petitioner that the assessments made on the lands of the remonstrant, Isaac Bohr, are just and equitable. The appellant then filed his motion for a new trial, which was overruled by the court, and he excepted, after which the court rendered judgment confirming the report of the commissioners.

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Numerous errors are assigned, but it does 7. Where, after a trial by the court, the un- not become necessary for us to notice each successful party neither moves to set aside the specifically. The court committed no error finding nor for a venire de novo, he cannot, on ap-in refusing to discontinue the petition. The peal, have the judgment rendered on the finding reversed, though the finding was so radically defective as not to justify the rendition of any judg

ment thereon.

8. A motion for a new trial will not reach such

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act of 1883 was in force when the petition was filed and the commissioners appointed, and, although repealed by the act approved April 6, 1885, as to all future drainage proceedings that might be instituted, was continued in force as to all pending proceedings. This act required the petitioner to file his petition in the office of the clerk of the court, noting thereon the date at which it should be

docketed, and then to give the required no- | court might not grant the request, and fix antice; and, much like the plaintiff in an or- other day for them to report. The failure of dinary action has to do when he commences the commissioners to perform their duty his action during the term and on the day should not work to the prejudice of the petinoted, it becomes the duty of the court, if tioners. satisfied that the proper notice has been given, It is contended by the appellant that anto order the petition docketed as an action other time cannot be fixed for the commispending therein. The petition, having been sioners to make their report, except on the thus docketed, becomes a pending action, day designated the commissioners themselves made so by law, and governed by the same appear in court and ask for further time. rules of procedure that govern other pend- We find no such provision in the statute; ing actions, except as specially otherwise pro- and, as we have already said, we can imagine vided; and, as there is no special provision as no good reason why any party interested to discontinuances in this class of cases, the might not ask that such an order be made. statutory provisions on that subject applica- It occurs to us that it can be claimed with ble to all pending actions must be applied. as much plausibility if commissioners apThese are as follows: "Sec. 1325. There pointed to make partition of real estate in acshall be no discontinuance of any suit, pro- tions of partition fail to report at the time cess, matter, or proceeding whatever, return- designated, that the failure will discontinue able to or pending in any circuit court, by the action. In such a case, what would be reason of a failure of the judge to attend on the court's action? Upon the application of the first or any other day of the term. Sec. any party interested, if not upon its own mo1326. If a court shall not sit in any term, all tion, it would designate another time for the matters pending therein shall stand continued same commissioners to report, or remove until the next term. Sec. 1327. If at the them, and appoint others, and designate a end of the term of any court any matters time for them to report. In what we have pending therein are undetermined, the same said we have taken it as granted that the peshall stand continued until the next term." titioners are not at fault, and act with reaIt would seem that these sections are broad sonable promptness. If the commissioners enough to meet the contention of the appel- fail to make their report at the time desiglant. But the report which the commission-nated, and their failure rests upon any fault ers were required to make had to be made to the court, and could not be made to the judge, and could therefore only be made when the court was in session. The time for holding the courts in Wells county was changed by an act of the legislature approved March 3, 1885, and as the result there was no court in session on the 28th day of April, 1885; hence the commissioners could not report on that day. It can hardly be claimed that this change in the law, even without a saving clause, or any other statute on the subject, would have the effect to discontinue pending actions. But section 11 of the said act contained an ample saving clause, and as the result thereof one of two conclusions must follow: either that it became the duty of the court, if requested so to do within a reasonable time by any of the parties interested, to designate another time for the commissioners to make their report, or else they might report within a reasonable time without such order; and in either case the appellant's motion was properly overruled.

or wrong of the petitioners, then the court might, no doubt, in the exercise of its discretionary powers, dismiss the petition, and it might do so when the petitioners were not in fault, if they fail to act with reasonable promptness, where the commissioners had failed to perform their duty. This is what is decided in the cases of Claybaugh v. Railway Co., 108 Ind. 262, 9 N. E. Rep. 100, and Munson v. Blake, 101 Ind. 78, and all that is decided. We quote from the opinion in the first case named: "If the drainage commissioners do not report at the time designated, it may be that the petitioners could avert a dismissal by appearing at that time and asking an order against he commissioners; but, however this may be, they cannot subsequently come into court, and as of right obtain such an order." The facts in that case were, in substance, as follows: The commissioners were ordered to report on the third Thursday in December, 1884, which they failed to do, and on the 12th day of March, 1885, they appeared in court, and requested But, independent of the statutory provis- that another time be fixed. Their request ions to which we have called attention, the was granted, and the 6th day of the followfailure of the commissioners to report at the ing June designated. On the 24th day of time designated will not discontinue the peti- said month of June, said commissioners not tion. We can imagine no good reason why having filed any report, they again appeared, it should. It may become evident before the and requested that still another time be fixed, arrival of the day designated that the com- but the court refused to grant their request, missioners will not be able to file their report; and, on motion of the appellee, dismissed the and in that event, if any one or more of the petition. Whether the failure of the appelparties interested appears and asks that fur-lant to object to the order of the court made ther time be granted in advance, or if on the designated day, or within a reasonable time thereafter, such request is made, we are unable to discover any good reason why the v.22N.E.no.16-27

on the 13th day of May, 1885, refusing to receive and act upon the report, but referring the same back to the commissioners, with directions for them to report at another day

named, was a waiver by the appellant of any | one way or the other." A verdict must anright to have the petition dismissed, we are swer all the material points in issue. Crouch not called upon to decide, for, as we have v. Martin, 3 Blackf. 256. See Scraper v. seen, he at no time had any such right. But Pipes, 59 Ind. 158. But the question as to see Munson v. Blake, supra. The act of 1883 the defect in the finding is not properly in not having been repealed as to pending pro- the record, and therefore the appellant canceedings commenced before the passage of not have the error corrected by this appeal. the act of 1885, the powers and duties of the He did not move, in the court below, to set commissioners appointed under the former aside the verdict, nor did he ask that a venire act were continued as to such pending pro- de novo be awarded. Moore v. Read, 1 ceedings. Blackf. 177; Tardy v. Howard, 12 Ind. 404; Anderson v. Donnell, 66 Ind. 150. A motion for a new trial does not reach a defect in the form of the verdict. Bosseker v. Cramer, 18 Ind. 44; Bell v. State, 42 Ind. 335; Anderson v. Donnell, supra; Green v. Elliott, 86 Ind. 53; Bunnell v. Bunnell, 93 Ind. 595; Carver v. Carver, 83 Ind. 368; Thayer v. Burger, 100 Ind. 262; Cottrell v. Shadley, 77 Ind. 348; Ridenour v. Miller, 83 Ind. 208; Bartley v. Phillips, 114 Ind. 189, 16 N. E. Rep. 508.

The failure of the clerk of the court to perform the ministerial duty of delivering to the commissioners a copy of the petition and order fixing the time at which they should report did not vitiate their report. This was, at most, a mere irregularity.

The court committed no error in sustaining the objection to the question propounded to the witness A. T. Stewart, as follows: "State what the fact is as to whether or not, from the examination you made yesterday of that creek, it appeared to have sufficient fall to drain Mr. Bohr's 40 acres." The question called for the witness' opinion, and not for facts within his knowledge. Besides, it was an inquiry for the opinion of the witness relating to an issuable fact, and that could not be withdrawn from the court and submitted to the witness.

The court committed no error in admitting the testimony of the witness Taylor Barton, as to the conversation which he held with the appellant. The testimony was for the purpose of proving declarations made by the appellant against his interest relating to the subject-matter involved in this litigation, and was therefore competent.

But the court erred in admitting in evidence the report of the commissioners. By his remonstrance the appellant joined issue upon the report as well as upon the petition. Elliott's Supp. § 1117. It is true, as contended by counsel for the appellee, that the report was before the court as a paper in the case; but it was not before it as a piece of evidence in the case. In determining the questions at issue the court could not consider the report as evidence, unless introduced in evidence, any more than it could consider the statements found in any pleading or paper relating to the issues of any case which might come before it for trial. But when introduced in evidence it was before The finding of the court was a general and the court for consideration, with other evinot a special finding, and was radically de-dence in the case. When the court overruled fective, and did not respond to the issues the appellant's objection, and allowed the which the court was called upon to determine. commissioners' report to be read in evidence, It was wholly insufficient for any purpose. this was a decision that it was competent It was so defective as not to justify the court evidence, and, if competent evidence, when in rendering judgment upon it. In the case the court came to make up its finding it was of Keller v. Boatman, 49 Ind. 104, the learned its duty to consider it, and weigh it as a part judge delivering the opinion said of the ver- of the evidence in the case, and we must predict of the jury: "The words in the verdict, sume that it did so weigh and consider it. We, the jury, find that plaintiff had a right We can see no distinction in principle beto replevy the mill,' amount to no more tween the introduction of the report in this than a conclusion of law, which the jury case from that of viewers in proceedings to could not decide. They express no fact on establish a highway appealed from the board which such a judgment could be rendered." of commissioners to the circuit court, or the The judgment rendered was for possession of report of the appraisers where there has been the mill in controversy. In Ridenour v. an appeal to the circuit court from the board Beekman, 68 Ind. 236, the verdict of the jury of commissioners in a proceeding to establish was in the following form: "We, the jury, a ditch or drain. In either case the report is find the property was replevied in Miami not competent evidence. The commissioners, county, and at the commencement of this appraisers, or viewers are competent witsuit the right of and possession thereto was nesses, and may give original testimony. In in the plaintiff, and assess his damages at Coyner v. Boyd, 55 Ind. 166, the learned judge twenty-five dollars." In that case the learned who delivered the opinion said: "The quesjudge delivering the opinion said: "We are tions in issue on the appeal were questions of opinion that the verdict was radically de- of fact,-such as whether the proposed road fective, and did not justify the rendition of was of public utility; whether it ran through any judgment, and, therefore, that the mo- the appellant's inclosure, etc.; and whether tion for a venire de novo should have pre- he was entitled to damages, and, if so, how vailed. The verdict does not, in terms, find much? Upon these questions the reports of the issues joined between the parties either the viewers * * * were but the embodi

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