signment of error is that the "court erred | to him. Afterwards, in the settlement of

in overruling appellant's general demurrer to the first and second paragraphs of plaintiff's complaint. The record does not show the filing of any such demurrer,

the estate of Eleanor Miller, deceased, the children and heirs, the appellees herein, agreed to sell to the appellant 5.66 acres of the land which had descended to them

and it has been held by this court that | from their mother, the same to be a strip

such an assignment presents no question when the ruling was on a separate demurrer to each paragraph. Ketcham v. Barbour, 102 Ind. 576, 26 N. E. Rep. 127.

The exceptions to the conclusions of law, we think, properly present the question as to whether the appellees were entitled to the judgment rendered in their favor on the issues joined by the pleadings in the case. The finding of facts shows that Eleanor Miller, widow, and mother | of the appellees, who died in 1880, owned a tract of land in Wells county containing | 150.33 acres, described in the deed under which she held title as "part of sections 12 and 13, in township 26 north, range 12 east, commencing at the southeast corner of the northeast quarter of said section 13; thence west 40 chains and 19 links; thence north33 chains and 23links; thence east 17 chains and 40 links; thence north, 25° east, 18 chains and 64 links, to the Wabash river; thence up said river to where the east line of said section 13 crosses the said river; and thence south 35 chains, to the place of beginning, as shown by maps attached by counsel for appellees to their brief, and referred to

off the east side of said tract owned by them, and adjoining the 80-acre tract on the west, extending across the tract from north to south, and wide enough to contain 5.66 acres. Some question was made as to the validity of the appellant's title to the 80 acres, and it was agreed that the appellees should make a quitclaim deed to him, including in it a description of the 80 and the 5.66 acretracts. The survey of the 80 acres as made by James Miller excluded 10 and a fraction acres on the north end of said tract of land, and that was included in the description in his deed, and included 10 and a fraction acres on the west of and adjoining said 80 acres as described in his deed, that was not conveyed to him by his deed. Regarding the survey as made by James as fixing the correct boundary line of the 80 on the west side thereof, the parties procured a surveyor, who took the west boundary line as fixed by the survey of James as the east line of the 5.66 sold to appellant, ran the west boundary line far enough therefrom to include 5.66 acres extending across the tract at that point from north to south, and included the description of the

and conceded to be correct." The Wa-two tracts in a quitclaim deed, which ap

pellees executed to appellant. The appellees then made conveyances conveying the portion of the whole tract lying west of the 85.66 acres as erroneously conveyed to appellee Henry C. Miller, and conveyed the 10 acres lying on the north of such 80 as erroneously surveyed to appellee Nancy C. Miller. Afterwards appellant asserted his title to the 10 acres on the north under his deed from James Miller, pro

bash river at the point where the description line running 25 degrees east, 18 chains and 64 links, to the Wabash river intersected the river, ran almost directly east for a short distance, then turned abruptly south, and ran in a southerly direction for a distance of probably 15 chains, then turned abruptly to the east, and continued in an ensterly direction untilitcrossed the east line of sald section 13, 35 chains north of the southeast corner of the north-cured a survey, and took possession of

east quarter of said section 13. Thus it the same. This action is brought to corwill be seen that the north boundary of | rect the quitclaim deed, and to recover the the land was comprised of irregular lines; and aline run from where the river turned to the east, as above described, west across the land, would cut 10 and a fraction acres off the north end of said land.

Prior to the death of Eleanor Miller she signed, acknowledged, and caused to be delivered to one Studebaker a deed conveying 80 acres off the east side of the 150.33acre tract of land, the west line to run far enough from the east to contain 80 acres, to her son, James Miller, one of the appellees, and at the same time directed said Studebaker to deliver the deed to James at her death, which was accordingly done. She died selsed in fee simple of the remainder of the land, and it descended to her children, the appellees. James procured a survey to be made of the land, and, lustend of running the west boundary line of hisland clear to the north end of the land, the surveyor only ran it to a point directly west from where the river turned to the east, and thence east to the river, and along the river to where the east section line of section 13 crossed the river. James Miller afterwards sold the 80 acres to the appellant, conveying the same by the description used in the deed

10 and a fraction acres lying to the west of the 85.66 acres in fact sold to the appel. lant, and owned by him, and between it and the tract sold to appellee Henry C. Miller.

The court states as legal conclusions that the appellees are not entitled to a reformation of the deed; that appellees are the equitable owners of 107.07 acres off of the west side of the 80 acres as erroneously surveyed by appellee James, and entitled to the possession thereof, and that the appellees are entitled on their complaint in this action to recover from appellant the west half of said 10 acres, or, as stated, they are entitled to recover the possession of the west 5.11 acres of the 80 acres. There is a finding that the appellees acted in good faith, and believed the erroneous survey properly fixed the boundaries of the original 80 acres, but that the appellant knew at the time of all the transactions subsequent to receiving his original deed from appellee James Miller that his said deed from James included the north 10 and a fraction acres, and did not include the same amount on the west side of the tract, as erroneously surveyed, and knew that aр

1

had. If they were not entitled to a reformation, they were not entitled to recover. There is no finding of fact showing any demand for a reformation of the deed before suit was brought. This was held necessary in Axtel v. Chase, 77 Ind. 74. See Ballard, Real Prop. §§ 370,371; Koons v. Blanton, 129 Ind. 383, 27 N. E. Rep. 334. The conclusions of law are erroneous. Being of the opinion that justice will be best subserved by instructions to the circuit court to grant a new trial, rather than to restate the conclusions of law, judgment is reversed, with instruction to the circuit court to grant a new trial.

(133 Ind. 26)

DOUTHIT et al. v. DOUTHIT.
(Supreme Court of Indiana. Nov. 29, 1892.)

APPEAL ASSIGNMENT OF ERRORS-REVIEW-CON-
VERSION BY PARTNER-ACTIONS BETWEEN PART-

NERS.

1. Where there is a single assignment of error by all the appellants to the rulings on demurrers to a complaint, such rulings cannot be considered on appeal unless the assignment is good as to all joining in it.

pellees were ignorant of any error in the | should have been reformed, and a recovery
survey, but purposely refrained from say-
ing anything about it. On no theory or
conclusion to be drawn from the finding
of facts can the conclusions of law stated
by the court be upheld. If the appellees
were not entitled to have their deed re-
formed and recover the land erroneously
described in it, it must be on the theory
that the first and second paragraphs of
the complaint proceed upon the theory of
and allege a mutual mistake, when the
facts as found show a mistake on the
part of the appellees, and knowledge on
the part of the appellant, and that he re-
frained from disclosing the facts to the
appellees, and practiced a fraud upon
them in procuring the deed for more land
than he was entitled to. Whether or not,
after obtaining the deed under such cir-
cumstances, and then asserting his title
to the 10 acres included in his original
deed, he can hold the additional 10 acres
he procured to be described in his new
deed to perfect his title under the claim
that his title was imperfect, and under
claim that the additional 10 acres be-
longed to him, is not presented for our
decision, for the reason that thecomplaint
does not proceed upon that theory. The
10 acres having been conveyed either
through mutual mistake or on account of
fraud on the part of the grantee, the deed
must be set aside before the party can
recover. It appears, as we think, clear
from the facts found that it was the in-
tention of the parties, or the appellees at
least, to sell and convey 5.66 acres next
adjoining on the west the 80 acres which
the appellant in fact owned and described
in his original deed, and, if the appellees
are entitled to recover at all in this ac-
tion, they are entitled to recover the 10
and a fraction acres off of the west side of
the tract as conveyed by their quitclaim,
and leaving the appellant owning the 80
acres originally purchased and 5.66 acres
adjoining thereto. The appellees, having
conveyed away the land, though they did
so through mistake, must have the deed
corrected before they can recover it. Hav-
ing conveyed away the legal title they
cannot recover on their equitable title,
except they reform the conveyance by
which the legal title passed, and take from
it the erroneous part which carried the
legal title.

2. There can be no reversal for errors committed in the formation of the issues, where the special findings of the court, being a part of the record proper, affirmatively show that no substantial injury has been done.

3. Where ere a partner collects money which on settlement of partnership affairs he has agreed shall be collected by his copartner as his individual property, and after collection converts it to his own use, the partner to whom the money belonged may maintain an action for its recovery without a prior demand.

4. Where a partner by suing his copartner, and obtaining judgment, elects to treat the partnership matter as adjusted, he cannot deny the right of his copartner to bring an action against him to assail the judgment which was wrongfully obtained.

5. Where parties and counsel prevent an appearance and defense in an action by representations and promises, they are guilty of fraud if, in violation of their promises and representations, they take a default in a case where they know there is a defense, and the judgment so obtained will be set aside.

6. Whether a final decree is correct in form, and awards proper relief, cannot be considered on appeal, unless a motion to modify has been made in the trial court, and proper exceptions taken and exhibited.

Appeal from circuit court, Shelby coun-
ty; L. J. HACKNEY, Judge.
Action by James S. Douthit against
Alonzo Douthit and others to set aside a

obtained, and to recover for money alleged to have been converted by defendants. From a judgment for plaintiff, defendants appeal. Affirmed.

J. B. McFadden, J. T. Carter, and J. H. Phillipy, for appellants. Thos. B. Adams, Isaac Carter, and Albert F. Wray, for appellee.

The second paragraph alleges that appellees are the owners of the real estate. It is contended that this is sufficient to support a recovery on an equitable title. | judgment alleged to have been unlawfully It is not necessary that we decide this question, for to recover on an equitable title in this case it would be necessary to make a case in equity, entitling the appellees to avoid and set aside the deed made by them conveying away the land, and the court held that they were not entitled, under the facts, to that relief. But the case succeeded and was tried upon the theory that there must be a reformation of the deed, and it is set aside and corrected, and a recovery of theland had, and this is no doubt the true theory on which it should have been tried, for if, by either fraud or mistake, there was more land included than should have been, the deed

ELLIOTT, J. There is a single assignment of error comprising several specifications, in which all of the appellants join. The rule is that, although there are separate specifications of error, the assignment must be good as to all who join in it, or it will not be availiable to any of the appellants. This is the well-settled | 1887, James M. Bassett obtained a judg

ment before Isalah C. Owens, a justice of the peace, for the sum of $92.80, against the defendants Alonzo Douthit and one George Baker, upon which execution had been issued; that said judgment was on the debt of Alonzo Douthit; that thereupon it was agreed between plaintiff and said defendant Alonzo Douthit that the plaintiff should collect said several items of indebtedness, and apply them in payment of said judgment, and the residue on the liabilities of the firm under said agreement. Fifth. That said Alonzo Douthit, in the year 1887, collected debts due the firm, of other parties than those above named, the sum of $58.60; that it was agreed at the time said money was advanced from the firm in payment of said judgment against said Alonzo that the plaintiff should be indemnified for his interest out of other moneys due to the firm, but that the defendant Alonzo Douthit collected said sum of $58.60, and appropriated the whole thereof to his own use, except $9.50, which he paid to one Patterson on a firm account, and that, for the purpose of cheating and defraud

rule. See authorities cited in Elliott, App. Proc. §§ 299, 318, 401, notes. Under this familiar rule, we cannot consider the rulings upon the demurrers to the com. plaint, since it undoubtedly states a cause of action against some of the appellants, and shows that the appellee is, at least, entitled to part of the relief demanded. The only specification in the assignment of errors which presents questions available to all of the appellants is the one which is founded on the exceptions to the conclusions of law stated upon the facts specially found by the court. Even if we should depart from the ruleforbidding the consideration of errors where they are jointly assigned by several parties, and the assignment is not good as to all, we cannot reverse, if it be true that it appears from the special finding that the errors in ruling upon the pleadings, if there were errors, were harmless. The special finding is part of the record proper, and where it affirmatively shows that no substantial Injury was done an appellant there can be no reversalfor errors committed in the formation of issues, for where the record proper shows that the ultimatecon-ing the plaintiff, said Alonzo entered into

clusion is right intermediate errors will be disregarded. See authorities cited in ElHott, App. Proc. §§ 590,591,635. In the case before us the principal questions argued by counsel in their attack upon the rulings on demurrer arise on the special findings, so that we have given carefulstudy to the appellants' arguments upon all the material questions. The special finding and conclusions of law read as follows: "The court finds that on the 4th day of July, 1887, the plaintiff, James S. Douthit, and Alonzo Douthit entered into a partnership for the purpose of threshing wheat and other grain; that by the terms of the partnership they were to be equal partners, sharing equally in the loss and profits, each owning an equal interest in the property used in the business; that James S. Douthit assumed and agreed to pay the one half of the indebtedness on the engine, which was the sum of $260, and one half of the indebtedness on the separator, which was $100, as the consideration for his interest in said property and business then purchased from said Alonzo. Second. That said parties engaged in said business, and continued therein till the 1st day of August, 1887, at which time they dissolved said partnership by mutual agreement, by the terms of which Alonzo Douthit was to keep all the partnership property and pay all the oustanding indebtedness on said property. Third. The court finds that, while said parties were so engaged in said partnership business, William Leslie became indebted to them for threshing in the sum of $3.48, David Ursil in the sum of $6.70, Thomas Gable in the sum of $5.60, Fred. Schepple in the sum of $20.00, Ed. Nelis in the sum of $4.20, William Kinsley in the sum of $20, Lot Barger in the sum of $17.12, James M. Bassett in the sum of $50.32, James S. Douthit in the sum of $34.12, making a total of $163.64 Fourth. That during the time they were engaged in threshing, viz., on the 8th day of July,

agreement with his codefendant James B. McFadden to sue the plaintiff for the items collected by the plaintiff and paid out as hereinbefore found; that the defendant McFadden, with a knowledge of all the facts, brought a suit against the plaintiff in the Shelby circuit court, for Alonzo Douthit, for the identical items hereinbefore set out; that said Alonzo and MeFadden knew that the plaintiff intended to defend against said suit, but said defendant advised and informed the plaintiff that he need not appear to said action, but that they would let the matter pass on until the plaintiff and the defendant could meet and have an accounting and adjustment between themselves as to all of said partnership matters; that the plaintiff relied upon said advice and premises, and had no means of knowing and did not know that the same were not made in good faith. Sixth. The court further finds that on the next judicial day of said circuit court the defendant McFadden, viz., on the 17th day of October, 1887, took a default against the plaintiff, and afterwards, on the 29th day of October, 1887, in said court, took a judgment on said default against the plaintiff for $98.20, on a part of said items of account so collected and paid out by the plaintiff. Seventh. That (in furtherance of said fraudulent purpose to cheat the plaintiff) the said Alonzo, on the 12th day of November, 1887, assigned said judgment to said McFadden on the order book of said court; that said McFadden took said assigument with full knowledge that the sum for which it had been taken had been collected by said James S. Douthit from the partnership assets, and by him expended upon the individual liabilities of said Alonzo. Eighth. That thesaid Alonzo is wholly and notoriously insolvent, and has no other means with which said partnership liabilities, or any part thereof, to the plaintiff, can be paid. Ninth. That in pursuance of said conspiracy said defendants, on the day of ---, 1888, | Alonzo is entitled to a credit of $7, be

nership assets, including the Bassett judg-mand necessary to create a complete right

ment, that was paid out of the partner- of action for a breach of the specific promship funds, the sum of $150.45; and the ises and duties embraced in and created plaintiff received of the partnership assets, by the contract of dissolution. Where one after deducting the amount paid per partner, upon dissolution, unconditionally Alonzo on said judgment, $70.54. Seven- agrees to pay a designated sum or a speciteenth. I find that there is duethe plaintiff fied debt, he is absolutely bound, and no from the defendant Alonzo, on the amount demand is required to fix his liability. collected of the partnership assets, after Anderson v. Ackerman, 88 Ind. 481. Where canceling the judgment for $98.20, recov- a partner collects money which he agrees ered in the circuit court by Alonzo against shall be collected by his copartner as his plaintiff, and assigned to McFadden, the individual property, and after collection sum of $40.43; that there is also due the converts it to his own use, the partner to plaintiff from the defendant Alonzo, for an whom the money belonged may maintain 'excess of money paid out on the partner- an action for its recovery without a prior ship liabilities that said Alonzo was liable demand. As Alonzo Douthit had collectfor, the sum of $39.37,-making in all an ed and appropriated $50 which he had amount due the plaintiff from the defend- agreed should belong to his copartner, the ant Alonzo of the sum of $79.80; that said | latter had a complete right of action for