75 Ind. 568 | Ind. | 1881
The only question presented for decision is whether the finding and judgment of the circuit court are in accordance with the law and the evidence. The action was to recover the possession of real estate, the plaintiffs claiming as owners in fee simple. The finding and judgment were for the defendants.
The rule is familiar that, if entitled to recover at all in such a case, the plaintiffs must recover on the strength of their own title. Under this rule the finding of the court upon the evidence adduced was manifestly right.
The title to real estate, in order to be good, must be traceable to the United States or to a grantor in possession under claim of title. Doe v. West, 1 Blackf. 134; Pierson v. Doe, 2 Ind. 123 ; Huddleston v. Ingels, 47 Ind. 498 ; Steeple v. Downing, 60 Ind. 478.
Counsel for the appellants says that the theory of the plaintiffs’ case is, that Andrew Metzger entered, in the proper land-office, the land in disputethat his patent, if ever issued, was not recorded in the recorder’s office of Clinton county ; that Metzger immediately assumed undisputed ownership and control of the land, and afterwards conveyed by warranty deed to Daniel Shively, who, on the 30th'day of August, 1842, conveyed to Abraham Brandenburg, Sr., or to him and his wife Mary F. jointly, which deed, it is claimed, is lost, and that the plaintiffs, besides said Mary F., who is the widow, are the heirs of said Abraham, who died intestate.
There is an entire failure of proof that said Metzger entered, or ever had possession of, the land. It is shown that on the 29th day of May, 1839, he made a deed for the
The defendants, however, put in evidence a deed for the land, made on the 24th day of November, 1859, by said Mary F. Brandenburg to the defendant Seigfried. At the time of making said deed, said Mary was a married woman, and her husband did not join in making the deed. The deed recites a consideration of $1,000, paid by the grantee to the grantor. The other defendants, besides said Seigfried, claim under him. Upon these facts, the counsel for the appellants say: “We insist that, by introducing the deed of Mary F. Brandenburg to Seigfried, the defendants staked their defence on its sufficiency, and waived all other defences.”
If the proof had shown said Mary in possession, claiming the land as her own when she made that deed, and, that the defendants obtained possession under and by virtue of it, there would be strong support for the proposition. By rea
The judgment is affirmed, with costs.