Craven v. Butterfield

On Petition for a Rehearing.

Bicknell, C. C.

— The amended complaint alleged that, by mistake of the scrivener, the property was misdescribed. The relief sought was the correction of the mortgage, and its foreclosure as corrected. The petition for a rehearing abandons this ground, and takes a new position, not asserted anywhere before in this case, and not alluded to in the original brief of the appellee.

The ground now taken is, that there was no mistake in the description, no uncertainty in it, nothing that needed any correction ; but, in his brief on the hearing, the appellee insisted that there was a defective description, and also parol evidence competent and sufficient to correct it. So far as the sufficiency of the instrument was concerned, this case was argued and decided upon that question alone, and we have no doubt it was correctly decided. It is the well settled practice of this court not to consider, on a petition for a rehearing, a question that was not presented on the original hearing of the cause. Underwood, v. Sample, 70 Ind. 446; Buskirk’s Prac. 376.

This rule of practice would require the petition, in this case, to be overruled, and it is, therefore, perhaps unnecessary to go further; but the point now made by the appellee, that a naked warranty cures a defective description, and adds words to it, so as to make it the same as if it contained the language : “All my land in fractional section fifteen,” etc., or *513“my twenty-seven acres in fractional section fifteen,” etc., can not be sustained; that would be giving to a mere covenant an effect never claimed for it before. What is described is warranted, nothing else; if nothing is described there is nothing warranted.

When the appellee urges that the words “ twenty-seven acres, fractional section fifteen, etc., mean the whole fractional section, and says that the court can not presume it contains more, he forgets that the court takes judicial notice of the public surveys in this State, Burton v. Ferguson, 69 Ind. 486, and therefore knows that the survey of said fractional section fifteen, town eight south, of range eleven west, contains more than twenty-seven acres. The description, twenty-seven acres fractional section fifteen, etc., does not mean the whole fractional section, but twenty-seven acres in that section, or part of that section, and it is impossible, by such a description, to tell which twenty-seven acres is intended.

The petition for a rehearing ought to be overruled.

Per Curiam. — The petition for a rehearing is overruled.