Montgomery v. Shockey , 37 Iowa 107 ( 1873 )

Day, J.

"dxctÍon: fraud. mistake. In the conflicting state of the testimony the caséis not altogether free from doubt, yet from a eareful review of the evidence we think it prepon.favor 0f judgment of the court below.

It is quite satisfactorily established that the two tracts of land are fifty miles apart, and that the fifty acres in Ripley have not, and never have had any improvements thereon, and that said tract is hilly, rocky, and worthless for agricultural purposes.

The weight of the evidence shows also that the defendants Nancy and John Shockey, by their declarations and representations, induced plaintiffs to believe that the lands in Ripley county were improved, and in state fit for cultivation, and that but for such belief plaintiffs would not have made the exchange.

The only real point of difficulty is as to whether the defendants knew their representations to be false. But if they did not know them to be false, they honestly believed them true, and there was a case of mutual mistake, which is as frequent and as satisfactory a ground of equitable interposition as fraud itself. And that this ground of relief is available under the issues made, see Sweezey v. Collins et al., 36 Iowa, 589.

g _tender of reconveyance, Some technical objections are made to the granting of the relief asked, which demand but brief notice. The Missouri ^an^s were owned by the defendant Nancy gkockey, The quit-claim deed tendered was to Nancy and John Shockey. This furnishes no substantial objection to the relief asked. All that is required of plaintiffs is that they show a readiness and an ability to do equity. If it had been suggested in the court below that the quitclaim should be to Nancy Shockey alone, there can be no doubt that plaintiffs would have been ready to have so made it; and even now defendants may have a decree directing the conveyance to be so made if they desire it.

3 pleading-amendment. It is further objected that the amendment to the petition asks no relief against the minor children of the defendants John and Nancy, and tbat a plaintiff can have ü0 re]j[ef beyond what be asks. But in the original petition plaintiffs ask tbat the title to said iands be vested in them, and tbat a commissioner be appointed to convey to them.

Tbe amendment to tbe petition with the original petition constitutes but one pleading. Rev., § 2983. Tbe prayer for relief, in tbe original petition, is, therefore, applicable to tbe amendment.

We discover no substantial objection to tbe judgment of tbe court below. Affirmed.