White et al. v. Stanton et al.

"To Aaron Stanton, Caroline Stanton, and others concerned:

"You are hereby notified that we intend to hold a mechanic's lien on lots one (1), four (4), five (5) and ten (10), in block two (2), in section sixteen (16), township thirty-five (35) north, range five (5) west, containing eighty acres, more or less, as well as the dwelling-house erected thereon by for the sum of sixteen and ($16.81) dollars, and materials furnished by us in the erection and construction of said house, which materials were done and furnished by us at your special instance and request, and within the last sixty days. WHITE & BELL.

,

"June 4th, 1885."

The defendants Caroline Stanton and Sarah Malone demurred separately and severally to the complaint, and, their demurrers being sustained, they had final judgment upon demurrer.

This appeal, therefore, presents only the question of the sufficiency of the complaint as against the said Caroline Stanton and Sarah Malone.

The objection urged to the complaint is based upon the alleged insufficiency of the notice to create a lien upon the land, or any part of it, described in that pleading, and particularly as against subsequent purchasers or junior encumbrancers.

It is claimed in support of this objection that the notice is fatally defective on account of its failure:

First. To state the particular lot or parcel of land upon which the dwelling-house was located.

Secondly. To name the county and State within which the land attempted to be described was situate.

There was nothing in the phraseology of the notice which excluded the inference that the lots described by it did not lie compactly together, with the dwelling-house resting partly upon each. On the contrary, the fair inference, from the words used, was that the four lots named comprised as an entirety an eighty-acre tract of land, on some part of which

White et al. v. Stanton et al.

the house was erected, which tract in turn constituted a part of section sixteen (16), in township thirty-five (35) north, and of range five (5) west.

This was sufficient to put all parties interested upon their inquiry as to which particular lot, if any one, the house was situate upon.

The question as to which particular tract of land, and how much, shall be subjected to the operation of a mechanic's or material man's lien is one for the court after hearing the evidence, and hence the notice of an intention to hold such a lien may include more land than ought to be sold to discharge the lien. Generally, so much land, and only so much, will be included in and subjected to the lien as will, under the circumstances, be held proper and necessary to the use and enjoyment of the particular house in question. Overton Law of Liens, p. 585.

The notice in this case referred to the dwelling-house as having been erected on all the lots contained in it, and that was sufficiently definite as to its particular location for all the purposes for which a notice in such cases is required. As applicable to the description of real estate in a deed or a mortgage the rule is, that where the description is so uncertain as to afford no reliable clue to a more definite and correct description, no title passes, or lien is acquired, as the case may be; but that where the description, though too defective and insufficient of itself to identify any particular tract of land, can, nevertheless, be aided by proper averments and rendered definite and certain by the introduction of extrinsic evidence in support of such averments, it will be held to be sufficient for the purpose intended, and a true description will be supplied at the hearing. Rucker v. Steelman, 73 Ind. 396; Tindall v. Wasson, 74 Ind. 495; Jones Mort., sections 65, 66 and 1462.

The same rule applies to the description of lands in notices of an intention to hold a mechanic's or material man's

The Home Insurance Company v. Howard.

lien. City of Crawfordsville v. Johnson, 51 Ind. 397; Kealing v. Voss, 61 Ind. 466; Newcomer v. Hutchings, 96 Ind. 119.

A clear distinction is, consequently, recognized by the authorities between descriptions which are radically and incurably uncertain, and those which, by the means referred to, may be rendered definite and certain.

The complaint in this case averred that the land is situate in Porter county, in this State; that the parties all resided in that county when the notice of an intention to hold a lien. was filed, and that the notice was recorded in the recorder's office of the same county. These averments, when taken in connection with the fact that we know judicially that a section of land corresponding generally with the one described in the notice lies within the county of Porter, were sufficient to supply the defect arising out of the failure of the notice to designate the county and State within which the land and dwelling-house were situate.

Our conclusion, therefore, is that the notice in question contained a defective and incomplete description of the real estate which it intended to describe, but not a wholly uncertain description, and that, in consequence, the demurrers to the complaint were erroneously sustained. Dutch v. Boyd, 81 Ind. 146.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

Filed Sept. 21, 1887.

No. 13,857.

THE HOME INSURANCE COMPANY v. HOWARD. CONTRACT.-Insurance.-Compromise of Disputed Liability.-Rescission.- When Necessary Prior to Action on Original Obligation.—A recovery can not be had upon a contract which has been released and surrendered in pursuance of a subsequent contract, upon which an amount has been paid as

The Home Insurance Company v. Howard.

a compromise of a disputed liability upon the original obligation, so long as the subsequent contract remains unrescinded and in force, even though the compromise was effected by fraud.

From the Sullivan Circuit Court.

A. Gilchrist, C. A. DeBruler, J. T. Hays and H. J. Hays, for appellant.

J. C. Briggs, W. C. Hultz and O. B. Harris, for appellee.

MITCHELL, J.-Howard brought this action to recover upon a policy of fire insurance issued to him by the Home. Insurance Company of New York.

It appears that after the loss occurred, and before the policy matured, the company claimed that by reason of certain facts known to it, relating to the origin of the fire, it was not liable upon its policy. A compromise was accordingly agreed upon, whereby, in consideration of twenty-five dollars paid to the plaintiff, the policy was surrendered up to the company and cancelled. This agreement was evidenced by a writing endorsed on the policy in the following language:

"PLEASANTVILLE, June, 1886. "Received of R. L. Klum, assistant State agent, twentyfive dollars in currency, which is in full of all claims I now have, or may have, under this policy for loss or damage by fire of May 8th, 1886, or otherwise, and this policy is hereby fully cancelled and surrendered to the Home Insurance Company of New York. RUEL HOWARD.

"Attest: W. STEWART."

The plaintiff claimed that the settlement and release had been procured from him while laboring under physical and mental distress, by the false and fraudulent representations of the company's agent.

Upon the plaintiff's motion the case was tried by a jury, as an action at law. The jury returned a verdict for twelve. VOL. 111.-35

The Home Insurance Company v. Howard.

hundred dollars, and, over the appellant's motion for a new trial, judgment was given accordingly.

The controlling question is, whether the finding and judgment are maintainable, in the absence of averment and proof that the plaintiff avoided the settlement and cancellation endorsed on the policy prior to the commencement of the action. This question arises on the pleadings, as well as upon the motion for a new trial.

The action being at law to recover upon the policy as a subsisting obligation, it follows inevitably that the contract of settlement and cancellation above set out, not being void, constitutes an insuperable barrier against a recovery so long as it is not rescinded or avoided by an offer to return the consideration paid for it. The case is not distinguishable from Brown v. Hartford Fire Ins. Co., 117 Mass. 479.

In such a case as this, a recovery can not be had upon a contract which has been released and surrendered up, in pursuance of a subsequent contract, upon which an amount has been paid as a compromise of a disputed liability upon the original obligation, so long as the subsequent contract remains unrescinded and in force. McMichael v. Kilmer, 76 N. Y. 36; Gould v. Cayuga County Nat'l Bank, 86 N. Y. 75; Bisbee v. Ham, 47 Maine, 543; Worley v. Moore, 97 Ind. 15, and cases cited.

It does not alter the case that the compromise may have been brought about by the fraud and misrepresentation of the defendant, or that in the end it was found that a sum largely in excess of the amount paid to settle the disputed liability was due the plaintiff.

As is said in Gould v. Cayuga County Nat'l Bank, supra, "In all actions of trover or replevin to recover the property parted with, and in all actions based solely upon the original relations between the parties, the plaintiff must show that he rescinded the fraudulent contract before the commencement of the action; in other words, that he had a cause of action when he commenced his action."