30 Ind. App. 88 | Ind. Ct. App. | 1902
This cause originated in the Grant Circuit Court, where there was a trial and verdict in favor of appellee. Appellant’s motion for a new trial was sustained by the Grant Circuit Court- On the affidavit and motion of appellant the venue was changed to the Miami Circuit Court, where there was a trial, verdict, and judgment in favor of appellee in the sum of $1,200. Appellee’s action was to recover damages for the unlawful appropriation of his real estate by the appellant. The complaint was in two paragraphs, the sufficiency of which is not questioned. Appellant answered by general denial. This completed the issues.
The facts out of which this controversy arose are as follows : The Xenia Real Estate Company was the owner of the parcels of land in controversy, and by warranty deed conveyed the same to ITarry J. Smith and Erank Linn. Smith & Linn were engaged in the manufacture of buggies. They became financially embarrassed and made a general assignment of all their property, both real and personal, to one' William Baldwin. This assignment included the parcels of land conveyed to them by the Xenia Real Estate Company, and known as lots one and two in Park addition to the town of Xenia, now Converse, in Grant county, Indiana. The said Baldwin, as assignee of the firm of Smith & Linn, by order of the court, sold said lots one and two, to one Edwin W. Tucker, and which sale was approved by the court and the deed of conveyance to the aforesaid real estate was executed to the said Tucker on the 9th day of February, 1895. The said Tucker and wife conveyed the said lots by quitclaim deed to the appellee Frank Linn. It is by these several deeds of conveyance that the appellee claims title to the real estate appropriated by appellant. Appellant bases its right to said real estate through a deed made on the 10th day of March, 1891, by Edwin W. Tucker and wife to Richard M. Crouch and wife, who on the 10th day of October, 1899, conveyed said lots
■ The general verdict of the jury necessarily found that all the material allegations of appellee’s complaint were true, and necessarily found as a part thereof that appellee was the owner of the real estate appropriated by appellant. With the general verdict the jury found facts specially by way of answers to interrogatories, which facts were in substance as follows: That appellee had possession of the real estate in controversy at the time the appellant entered thereon; that the Xenia Real Estate Company conveyed by warranty deed the title to said real estate to Harry J. Smith and Frank Linn in January, 1892; that the said Smith and Linn, by deed of assignment, conveyed the title to the said real .estate to William Baldwin, trustee, on September 13, 1892; that Baldwin, as trustee, and by order of the Grant Circuit Court conveyed the title to said lots to Edwin W. Tucker, March 6, 1893, and that the said Tucker and wife conveyed the title to said lots by deed to appellee on the 9th day of Eebruary, 1895, and that the appellee was
With these findings before us, we will proceed to determine whether the errors, if any, in the trial court, and brought to our attention by counsel for appellant, have been harmful. The first alleged error of the trial court was the giving to the jury instructions numbered seventeen, twenty-two, and twenty-three. Each of these instructions stated to the jury practically the same rule in different forms. They were all to the effect that a deed which has been surreptitiously and fraudulently obtained from the grantor without his knowledge or consent, does not, even as against a subsequent purchaser without notice, transfer title. It is not necessary that we hold that the instructions complained of stated the law, because in this case the jury found that the appellant had notice of appellee’s title before it took the deed from Crouch and wife, and for the further reason that the trial court, by its instruction numbered twenty-four, corrected the alleged errors, if any, in instructions numbered seventeen, twenty-two, and twenty-three.
All the other questions argued by counsel for appellant arise upon the rulings of the court upon the admissibility of evidence. It is contended that the trial court erred in sustaining appellee’s objection to the following question propounded by appellant to its witness Groolc upon his direct examination: “At the time you sold to the railroad company, what reservation, if any, did you make on the property ?” Appellee’s objection to the question was susr tained, and excepted to, after which appellant made its offer to prove. It has been often decided by the Supreme Court of this State that in order to save an exception to the ruling of the court excluding an answer to a question propounded to a witness, a statement must be made to the court of the testimony the witness would give if permitted to answer the question, before a ruling is made on such ques
Other questions argued by counsel for appellant, arising upon the admission of certain evidence, are without merit when examined in the light of the facts found by the jury. The cause seems to have been fairly tried and determined.
Judgment affirmed.
Black, Robinson, and Wiley, JJ., concur. Roby, .0- J-> dissents. Comstock, J., Absent.