14 Ind. App. 514 | Ind. Ct. App. | 1896
This is an action in tort in which appellant sought to recover from appellee the value of cer
Appellee answered in two paragraphs: 1. By general denial; (2) specially. Appellant demurred to the answer as a whole and not to the second paragraph separately.
A jury returned a special verdict upon which the court rendered judgment in favor of appellee.
The court could not rightfully have done otherwise than overrule the demurrer to an answer which contained a general denial. Scott, Admr., v. Tell City Bank, 10 Ind. App. 94.
The statute authorizes the sufficiency of a complaint to be tested for the first time by assignment of error in this court, but there is no law for thus testing the sufficiency of an answer or any paragraph thereof. Bledsoe v. Rader, 30 Ind. 354; City of Evansville v. Martin, 103 Ind. 206.
■ Appellant asserts that he was entitled to judgment upon the special verdict.
From the verdict we learn that the land on which the wheat was grown was owned by appellant’s father, from whom appellant rented it in March, 1892, for one year for cash rent, and in “case of. sale of said farm during said year he agreed to give full possession of the same on thirty days’ notice; that said plaintiff went into possession of said farm and sowed sixty-nine acres of wheat thereon in the fall of 1892; that the father died November 26, 1892, testate, directing by his will the sale of said land; that said land yms on February 4, 1893, 'by the administrator of said estate,upon the order of the proper court in a proceeding to which, appellant was a party,duly sold to appellee for $7,000, and the purchase money paid and a proper deed therefor exe
Counsel assert that the sale of the land did not include the wheat, because it was personalty, and could only be sold by the administrator in the mode prescribed by law for sale of personalty. If this be conceded, it still does not establish appellant’s claim to the wheat. If the appellee had no title thereto, appellant cannot recover by proof of that fact, unless he can go further and establish his own title.
It is further argued by appellant that since the ver
If the wheat was not sowed under the contract set out, there is nothing whatever in the verdict to show that it was put in under any contract by virtue of which appellant could hold it. If we assume, however, that it was put in under this contract, then we think it clear that in pursuance of that contract appellant surrendered the farm and the wheat with it, and is not entitled to recover.
Having thus voluntarily surrendered the possession, and not only acquiesced but actually consented to appellee’s cutting the wheat, it is now too late for him to undertake to treat appellee as a wrongdoer. Keeping
Judgment affirmed.