Butler v. Holtzman

| Ind. | Nov 15, 1876

Biddle, J.

Complaint by appellees, to enforce the specific performance of a title-bond. The appellants were all defaulted, except Elizabeth Butler; she answered by a general denial, and filed a counter-claim, setting up that Frederick T. Butler died seized of the lands in controversy, leaving her his widow, and that she is entitled to one-third of the lands. To the counter-claim, the appellees answered by a general, denial and a special paragraph. A demurrer was filed to this paragraph, on the ground of a want of facts alleged; the demurrer was overruled, and exceptions reserved; but we do not notice this question, as the special paragraph went merely to the denial of the counter-claim, and, as the general denial was in, no error was committed. The cause was tried by the court, and a finding had for the appellees, which was questioned by the proper motions and exceptions, over which the court decreed a specific performance of the bond. Appeal.

The controlling facts of the ease, about which, we believe, there is no material dispute between the parties, are as follows:

In 1865, Jacob "Wampler recovered judgment against John D. Vint, in the court of common pleas, for seventy-five dollars, and costs. Execution was issued upon the judgment, the land described in the title-bond levied upon as the property of Vint, and sold by the sheriff to Erederick T. Butler, to whom the sheriff executed the proper certificate of purchase, which was after-wards lost. Erederick T. Butler sold the land to James Burton, and gave him the title-bond in qtiestion, conditioned to execute a proper conveyance to Burton, his heirs or assigns, on payment of- the pui’chase-money. Bui’ton assigned the bond to the plaintiffs, who paid the purchase-money for the land. Vint never redeemed the land. Butler occupied it four years before he made the title-bond to Burton, and died, but never received the sheriff's deed. Burton entered in and possessed the land, under his title-bond, and the plaintiffs entered in and possessed the land, under their assignment from Burton.

There is a question of evidence raised as to certain testimony of George A. Buskirk, who was allowed to state, over the objection of the appellants, that “Said Butler informed me that he had lost the certificate of purchase, and made the bond to Burton because he had lost the certificate of purchase.” It does not appear whether this statement of Butler’s was made while he owned the land, or after he had sold it; but no such objection was pointed out to the testimony. We hold, however, that the testimony, as against the appellants, was immaterial. Their rights are just the same, whether the certificate was lost or not. Both parties agree that it once existed.

It is insisted, on behalf of the appellants, that, as Butler owned the land for several years after he was entitled to the sheriff's deed, and occupied the same under his certificate of purchase, he became seized thereof, and held a title which he could not convey, unless his wife joined in the deed. We have come to a different conclusion. If Butler had died while he held an equitable title to the land, under the sheriff’s certificate, and before he had made the title-bond in question, and before he had received the consideration for the sale of the land, his widow and heirs would have had an interest therein; but the facts show that he never was seized of the land, during the marriage, and that, at the time of his death, he had no interest in it, whatever; there was, therefore, nothing left in the land for his widow and heirs to take. 1 R. S. 1876, p. 413, sec. 27.

We think there is no error in the record.

The judgment is affirmed, with costs.