Ferguson et al. v. Hull et al. to, an action to review the judgment itself. Here there is misjoinder of causes of action. We are of the opinion that the demurrer of Day for misjoinder of causes of action should have been sustained. Works' Pr., volume 1, sections 487 to 490, inclusive; Goff v. May, 38 Ind. 267; Lane v. State, ex rel., 27 Ind. 108; Bougher v. Scobey, 16 Ind. 151; Fritz v. Fritz, 23 Ind. 388; Langsdale v. Woollen, Admr., 120 Ind. 16. The special finding of facts shows that the only cause of action attempted to be found against Day is the irregularity of the issuing of the execution and the levy made thereunder by him, and it is substantially the same question which was presented by the demurrer to the complaint. The court, in its conclusions of law, simply righted its wrong, and corrected its mistake in the ruling on the demurrer of Day, sheriff. We think the demurrer of the sheriff, both on the ground of misjoinder of causes of action and for want of sufficient facts, was good; and a demurrer for either cause would have been properly sustained, although the overruling is not reversible error. But the court having overruled this demurrer, its conclusions of law upon the facts found had the effect, so far as the appellees are concerned, of correcting this error. But are these facts stated in the complaint sufficient to constitute a cause of action against appellees, Hull and Boswell? In other words, did the court err in sustaining the demurrer of said defendants to the complaint, or either paragraph thereof? The only errors upon which the appellants can rely, and the only questions presented by the proceedings to review, are the rulings of the court below in overruling the demurrer of defendants in the original case to the first and second paragraphs of Hull and Boswell's complaint. Ferguson et al. v. Hull et al. There was no demurrer to the third paragraph, and the fourth paragraph was dismissed. It is true, the sufficiency of a complaint may be presented by an action to review, just as in the Supreme Court on an appeal, without demurrer, but here the appellants have raised no question as to the sufficiency of the third paragraph of the original complaint, and, if they did, it would withstand all objections that might be urged, because it is simply a paragraph for money had and received. So the rulings of the court below, in the original action, left, to which appellants can urge objection, is the ruling of the court in overruling the demurrer to the first and second paragraphs of the complaint. We think these paragraphs are good. The only questions raised by counsel are that they are deficient because they fail to set out the exhibits referred to therein, and for the further ground that no demand was made. The record fails to show any exhibits accompanying said paragraphs, but this was unnecessary, because the exhibits referred to are not the basis of the action, and are not therefore necessary parts of the complaint. As to the second objection, that no demand was made, this is obviated by the allegation that defendants refused to pay. These allegations impliedly show a demand, otherwise there would not likely have been a refusal to pay. But if they refused to pay, even without demand, this was a waiver of demand, an act by them that relieved plaintiffs from the necessity of making demand. There are no defects in these paragraphs, that would not be cured by a verdict or finding. But even if they were bad, this court is not informed upon what paragraph of complaint the court below found. It may be that the court found upon the third paragraph of the complaint. Where the evidence is not in the record, and there is no Starkey et al. v. Starkey. showing as to what paragraph the court found upon, the court will presume everything in favor of the correctness of the decision of the court below. Stevens v. City of Logansport, 76 Ind. 498; Weller v. Becktell, 2 Ind. App. 228; Hoffman v. Toll, 2 Ind. App. 287. If the finding of the court was on the third paragraph of the complaint, then any error in overruling a demurrer to the first and second paragraphs thereof would be cured, and appellants could not avail themselves of any error on account of such rulings, if any were committed. We think a correct result was reached by the trial court and that the judgment should be, and is, in all things affirmed. Filed Jan. 30, 1894. No. 16,540. STARKEY ET AL. v. STARKEY. ASSIGNMENTS OF ERROR.-Conclusions of Law.-Exception to.—Assignment, How Made.-Where an assignment of error is that the court erred in overruling the exceptions to the conclusions of law, instead of that the court erred in its conclusions of law, the record not showing that the court did overrule such exceptions, and not being required to take such action, no question is presented as to the conclusions of law. PLEADING-Indefiniteness.—Question, How Raised. The objection that the complaint is too indefinite, can not, as a rule, be properly raised by demurrer. SAME. Complaint. — Indefiniteness. - Specific Performance. - Contingency. Where the complaint alleges, among other things, in an action for specific performance of a parol contract to convey land, that the promisor offered and agreed with the plaintiff, his son, that if plaintiff would give up going to Illinois to live, and would, with his Starkey et al. v. Starkey. wife and children, move upon such tract of land, and settle upon the same, and remain there, so that plaintiff might be near him, and he might enjoy the society of plaintiff and his family, and if plaintiff would give him one-third of the grain raised on a certain part of said land, until such time as the promisor would get in better financial circumstances, the promisor would convey said land to plaintiff in fee-simple, the italicized phrase is not so vague and indefinite as to render the complaint insufficient on demurrer. CONTRACT.- Parol for Conveyance of Land.— Contingency.—Part of Crops.-Landlord and Tenant.-Where one of the conditions in a parol contract between father and son, to convey land, was that the son should give to his father one-third of certain crops until the father should be in better financial circumstances, such condition did not make the son a tenant. SPECIAL FINDING.-Sustained by Evidence. That the finding of the court is sustained by the evidence, see opinion. From the Sullivan Circuit Court. J. T. Beasley, A. B. Williams and W. C. Hultz, for appellants. J. T. Hays and H. J. Hays, for appellee. HOWARD, C. J.-This was an action by appellee to enforce specific performance of a parol contract to convey land. On the overruling of demurrers to the complaint, there was an answer in general denial. At the request of the appellants, the facts were found. specially. Conclusions of law followed in favor of the appellee, and on the overruling of a motion for a new trial, a decree was entered in accordance with the conclusions of law. Numerous errors are assigned for our consideration. The fifth assignment of error is that "The court erred in overruling the exceptions of George W. Starkey, to the conclusions of law stated upon the special finding of facts." The sixth, seventh, and eighth assignments are sim Starkey et al. v. Starkey. ilar; and appellee insists that these assignments are not. well made. By section 551, R. S. 1881, it is provided that "Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial, in which case, the court shall first state the facts in writing, and then the conclusions of law upon them," etc. Under the provisions of this statute, it has long been. held that if the court has erred in its finding of facts, the proper means of reaching the error is to move for a new trial, unless the finding is so imperfect that no judgment can be based upon it, when a motion should be made for a venire de novo. If the motion for a new trial is overruled, an exception should be entered to such ruling, and then it must be assigned as error, on appeal, that the court erred in overruling the motion for a new trial. If, however, the court has erred in its conclusions of law on the facts found, an exception should be made to the conclusions of law, and then the assignment must be that the court erred in its conclusions of law. Montmorency Gravel Road Co. v. Rock, 41 Ind. 263; Cruzan v. Smith, 41 Ind. 288; Lewis v. Haas, 50 Ind. 246; State, ex rel., v. Berg, 50 Ind. 496; Selking v. Jones, Admr., 52 Ind. 409; Dehority v. Nelson, 56 Ind. 414. In this case, instead of making the assignment that the court erred in its conclusions of law, the assignment made by appellants is that the court erred in overruling the exceptions to the conclusions of law. Whether it would be error in the court to overrule the exceptions to the conclusions of law, we need not inquire, since it is |