39 Ind. 155 | Ind. | 1872
This was an action by the appellant against the appellee. There were two paragraphs in the complaint, one to recover possession of certain land, the title to which was alleged to be in the plaintiff, and the other to quiet the plaintiff’s alleged title thereto.
The defendant answered, secondly, to both paragraphs of the complaint, that on the 17th of August, 1864, the plaintiff brought an action in said court against the defendant, complaining that the defendant on the first of September, 1863, and on divers other days thereafter, and before the bringing of that suit, entered upon the land in controversy and cut down and destroyed and carried away timber trees growing thereon, to the damage of the plaintiff of one hundred and fifty dollars, during all of which time the plaintiff was the owner of the
To this answer, the plaintiff demurred, for want of sufficient facts, etc., but the demurrer was overruled, and the plaintiff excepted. The plaintiff declining to reply, final judgment was rendered for the defendant.
The plaintiff appeals and assigns for error the ruling on the demurrer.
Some objections of a technical character are made to the answer, that may be disposed of before considering the substantial merits of the pleading. It is objected that a copy of the entire record of the judgment pleaded is not filed as a part of the pleading. This court has held, in the case of Lytle v. Lytle, 37 Ind. 281, that a judgment is not a written instrument within the meaning of the statute requiring copies of written instruments which are the foundation of an action or defence to be set out. This decision was made after pretty mature consideration, and we adhere to it. The objection, therefore, cannot be sustained.
It is also objected that the answer is defective in not alleging that the judgment pleaded is in full force and not vacated, set aside, or reversed. In the case of Murphy v. Orr, 32 Ill. 489, it was held, that it being shown that a decree in
The matter, however, is put entirely at rest, so far as an answer of former recovery is concerned, by the form for such answer adopted by the legislature, in which the recovery of the judgment is alleged, without any averment as to its continuing in force.' 2 G. & H. 379. These forms are made sufficient in all cases where they are applicable, and in
Again, it is urged that although the title may have been settled to have been in the defendant, at the time of the alleged trespass, by the verdict and judgment in the action of trespass, still it may afterward have become vested in the plaintiff, and therefore the answer was bad. We are of a different opinion. If after the trespass the title in any way passed from the defendant to the plaintiff, the fact should have been averred by way of replication. Abdil v. Abdil, 33 Ind. 460. We have seen that the complaint contained two paragraphs, one to recover the land, and one to quiet the plaintiff’s alleged title thereto; and it is insisted that the answer in question cannot be good as to both paragraphs, and, being pleaded to both, it was bad, and the demurrer should have been sustained. There is no force in this objection. The answer, if good as to either paragraph, was good as to both; for both were based upon the theory that the title was in the plaintiff) and the answer set up matter estopping the plaintiff from setting up such title.
This brings us to the merits of the answer, and we have no doubt it sets up matter that estops the plaintiff to allege or set up title to the land. According to the allegations in the answer, there was an action in a court of competent jurisdiction, between the same parties, in which the title was alleged to be in the defendant, and on this allegation issue was joined, and the issue properly tried by a jury and found for the defendant, and judgment rendered accordingly; the issues thus joined being the only matter controverted on the trial, and the evidence being confined to that issue, the alleged trespass being admitted. Here was an adjudication as to the title of the property, by which the parties were bound. We shall not range through all the authorities on this point. They are numerous. It will be sufficient to cite one or two. In the case of Outram v. Morewood, 3 East, 345, it was decided, that “ if a verdict be found on any fact
A verdict and judgment for the defendant in an action of trespass q. c.f, where he pleads liberum tenementum, do not necessarily in all cases settle the title to be in him. He may plead other matters also, as a denial of the imputed trespass, and the cause may turn upon other questions than the defendant’s title to the property. But parol evidence is competent to show what transpired, and what facts were controverted, on the former trial, and thus show the ground upon which it was decided. Hargus v. Goodman, 12 Ind. 629; Doty v. Brown, supra.
In the case before us, the pleading clearly shows that no question was controverted in the trespass suit but the title to the property. The answer was good, and the demurrer correctly overruled.
The judgment below is affirmed, with costs.