Rhodes v. Mummery. PARTITION FENCE.-Statute.-The statute, 1 G. & H. 343, sec. 15, providing that partition fences "shall be maintained throughout the year, equally by both parties," is not limited to repairs simply, but applies as well to the rebuilding of a fence destroyed by fire. From the Lake Common Pleas. M. Wood, T. J. Wood and J. C. Denny, for appellant. DOWNEY, J.-This was an action commenced before a justice of the peace, by the appellee against the appellant, on the following cause of action: "Robert Mummery complains of James Rhodes, and says that he is justly indebted to him in the sum of forty dollars for building and repairing forty rods of fence." There having been judgment rendered for the plaintiff before the justice of the peace, the defendant appealed to the common pleas, where he moved the court to dismiss the case for the want of a sufficient cause of action. This motion was overruled, and the cause was tried by the court, and there was again a finding for the plaintiff. The defendant moved for a new trial for the reasons: 1. That the finding was contrary to law. 2. It was contrary to the evidence. 3. The finding was contrary to law and the evidence. This motion was overruled, and there was final judgment for the plaintiff. Two errors are properly assigned; first, the overruling of the motion to dismiss the action; and, second, the refusal to grant a new trial. The first question relates to the sufficiency of the complaint. No objection to it was made before the justice of the peace. Conceding that the objection was not made too late, and that the question is properly presented without any bill of exceptions, we think it was properly overruled. Counsel for the appellant say, in their brief, that the action was to recover onehalf of the cost of building a partition fence, and they contend that the facts, which, under the statute, must exist to render the defendant liable, should have been specially alleged. But in this counsel go outside of the complaint for an objec Rhodes v. Mummery. tion to it. The complaint being good upon its face, the motion, which was resorted to instead of demurring, did not present the objection that counsel urge. The next question discussed by counsel is, that the court erred in admitting in evidence the notice to the appellant that the appellee would, on a day named, call upon appraisers to assess the amount necessary to build the partition fence. This question is not in the record. It should have been made a ground for a new trial. Not having been set down in the motion as a cause for a new trial, it can not be presented now for the first time. The same must be said with reference to the admission in evidence of the assessment or report of the appraisers. Again, it is urged that the partition fence in question had been burned down, and that the statute does not contemplate the rebuilding of a partition fence under such circumstances. The statute is, that, "except when otherwise specially agreed, partition fences, dividing lands occupied on both sides, shall be maintained throughout the year, equally by both partics.” 1 G. & H. 343, sec. 15. We think this language is broad enough to cover the case in hand. The word "maintained,” in this connection, may properly be construed to require a fence to be rebuilt as well as repaired. This is a small case, and the other questions depend upon the evidence. We think the evidence was of such a character that we can not disturb the judgment. The judgment is affirmed, with costs. OSBORN, J., was absent. Opinion filed November term, 1873; petition for a rehearing overruled November term, 1874. DeFord v. Urbain. DEFORD V. URBAIN. . CONTRACT.-Rescission of.-New Trial on Condition.-A. sold to B. a portable From the Marion Superior Court. N. B. Taylor, F. Rand, E. Taylor, C. H. Test, and D. V. Burns, for appellant. J. L. Mitchell and W. A. Ketcham, for appellee. WORDEN, J.-This was an action of replevin by the appellant against the appellee, for a portable saw-mill. Issue, trial by jury, verdict and judgment for the defendant. There was a motion for a new trial, assigning for cause, amongst other things, that the verdict was not sustained by sufficient evidence. We may observe here that a demurrer was overruled to the third paragraph of answer, and this ruling is embraced by the assignment of error; but no objection to this ruling is pointed out in the brief of counsel for appellant, and we therefore need not further notice it. The substance of the defence set up by the fourth and fifth paragraphs of the answer was, that the defendant had sold to the plaintiff the saw-mill in controversy, and had taken, in part payment therefor, a certain parcel of land, and that the plaintiff had made certain false and fradulent representations, both in respect to the quality of the land and the plaintiff's 48 219 125 568 DeFord v. Urbain. title thereto, and that the quality was not such as was represented, nor had the plaintiff any title. On the trial, it appeared that Jacob P. Dunn had agreed to convey the land to a certain gravel road company, and the company had agreed to convey it to the plaintiff; and it was agreed between Dunn, the gravel road company, the plaintiff, and the defendant, that Dunn should convey the land directly to the defendant in fulfilment of the plaintiff's agreement to convey it to the defendant. Accordingly, Dunn and wife made to the defendant a warranty deed for the land, which the defendant accepted in fulfilment of the plaintiff's agreement to convey it to him; and, at defendant's request, Dunn sent the deed to Newton county, where the land was situate, and had it recorded. Dunn had no title to the land, nor was the land of the quality which seems to have been represented, but it was of some value. There was no evidence that the defendant ever offered to reconvey the land, either to Dunn or to the plaintiff. On appeal of the cause from special to general term, it was adjudged, in substance, that the plaintiff have a new trial of the cause, unless the defendant should, within a time specified, execute a deed of quitclaim to the plaintiff for the land, and place the same on file for the use of the plaintiff. The assignments of error in this court are sufficient to raise the question involved in the proceedings of the court below at general term. We are of opinion that the court below erred in not reversing the judgment which had been rendered at special term, and in not awarding an unconditional new trial. The defence was based upon the theory that the defendant had the right to rescind the contract by which he sold the saw-mill to the plaintiff, on the ground of the fraud alleged to have been practised upon him. If there was no fraud practised upon the defendant in respect to the title to the land, the failure of title would be no ground whatever for rescinding the contract. He must, in such case, abide by the contract, and seek his remedy upon the covenants in his deed. DeFord v. Urbain. Laughery v. McLean, 14 Ind. 106; Hacker v. Blake, 17 Ind. 97; Johnson v. Houghton, 19 Ind. 359; James v. Hays, 34 Ind. 272. But a fraud practised upon him, either in respect to the title or the quality of the land, would justify a rescission. A party, however, who wishes to rescind a contract on the ground of fraud, is bound to act promptly on the discovery of the fraud and restore to the other party, or offer to restore, what he has received on the contract, so as to place the other party, as near as may be, in statu quo. The contract must be rescinded in toto. Cain v. Guthrie, 8 Blackf. 409; Matlock v. Todd, 25 Ind. 128; Patten v. Stewart, 24 Ind. 332; Fisher v. Wilson, 18 Ind. 133. The authorities upon these points are, indeed, very numerous, but we deem it unnecessary to collect more of them here. It is very clear that a valid defence was not made out without a reconveyance, or an offer to reconvey the land. We are of opinion, further, that the defence should have been made out upon the trial of the cause. Perhaps, if no offer to rescind and reconvey had been made before the commencement of the action, it might be made afterward and properly pleaded, but upon this point we make no decision. As before stated, we think the defence should have been made out upon the trial of the cause, and if not so made out, the plaintiff was entitled to a new trial. We are not aware of any practice by which a party, for the purpose of obviating a motion for a new trial, may do a thing after verdict in his favor, which was necessary to be done in order to obtain the verdict, and thereby save the verdict. Under the provisions of the act creating the superior court, it seems to us that the court can not, at general term, require the judge at special term to do what he might not have done without such requirement. The judge at special term could not, as we think, in accordance with general principles of practice, have made the success of the plaintiff's motion for a new trial dependent upon the contingency specified. The judgment below at general term is reversed, with costs, |