67 Ind. 503 | Ind. | 1879
The appellant, John G. Earle, commenced this suit in 1872, in the Lake Circuit Court, alleging that
Alfred Morrison was afterward, upon his own application, made a party defendant.
One trial of the cause was had in the Lake Circuit Court, at its April term, 1874, resulting in a judgment for the appellant. At the February term, 1875, of the said Lake Circuit Court, the appellees filed their petition to vacate that judgment and for a new trial, as a matter of right, upon the payment of costs, and the court vacated the judgment and granted a new trial, to which no objection was made at the time, or at any other time .afterward during the progress of the cause.
Afterward, at the April term, 1875, of the same court, for some reason not disclosed in the record, the appellees filed what was called a supplemental petition for the vacation of the same judgment, and for a new trial, as a matter of right, and-the court again entered an order vacating the judgment, and granting a new trial, to all of which the appellant, at the time objected aud excepted.
After the granting of this second order for a new trial, the venue of the cause was changed to the Porter Circuit Court, where there was another trial, and a verdict for the defendants.
A motion for a new trial being overruled, final judgment was rendered in favor of the defendants, the appellees here, and quieting the title in the land sued for in Morrison.
In 1872, after being admitted a defendant, Morrisou filed a counter-claim in the form of a cross complaint, setting
Morrison afterward filed what he called his amended and supplemental cross complaint, alleging that the said Abram P. Andrew, Jr., by a deed of general warranty, bearing date the 29th day of May, 1871, conveyed the land in suit to him, said Morrison, and that he, said Morrison, took, and has since held, possession of said laud, under said deed, a copy of which wTas filed as “ Exhibit B that the said title-bond, which is set forth in his original cross complaint, was executed and delivered by the said John B. Ducharme, on the day of its date, to Jacob Beeson, the obligee therein; that on the 5th day of May, 1835, the said Beeson assigned and delivered said bond to certain persons doing business under the name of Hendricks & Rush ; that on the 5th day of August, 1836, the said Hendi’ieks & Rush assigned and delivered said bond to one Hiram Todd; that on the 1st day of October, 1836, the said Todd assigned one-half of his interest in said bond to the said Abram P. Andrew, Jr., and delivered said bond to the said Andrew; that said Andx’ew took immediate control of said land, under said bond, in his own behalf, and as agent for said Todd, and continued to control said land until he sold it to him, said Mox’rison; that oxr the 1st day of Jaxiuary, 1855, the said land having become delinquent for noxx-payment of taxes, the said-Eaxle became the purchaser thereof at a sale for taxes, and received from the auditor of the county a px’oper cei'tificate of his purchase; that said Andrew, in order to protect his title to said land, was compelled to pux’chasé and did, on the 7th day of January, 1856, purchase said eex’tificate from the said
The appellant demurred to this amended and supplemental cross complaint, hut his demurrer was overruled.
He then answered said cross complaint
1. ' In general denial;
2. That the cause of action did not accrue within fifteen years before the filing of such cross complaint;
3. That the cause of action did not accrue within twenty years before the filing of the cross complaint; and,
4. In a lengthy paragraph setting up various matters, by way of special denial and otherwise, upon which no question is made here, and -which need not, therefore, be more particularly referred to.
Morrison demurred severally to the second and third paragraphs of the answer to his cross complaint, and the court sustained his demurrer to both paragraphs.
Errors are assigned:
2. Upon the overruling of the demurrer to Morrison’s amended and supplemental cross complaint;
3. Upon the several rulings of the court sustaining Morrison’s demurrers to the second and third paragraphs of the answer to his said cross complaint; and,
4. Upon the overruling of the appellant's motion for a new trial.
Errors are also assigned upon other proceedings below, but they amount only to objections which might have been presented as causes for a new trial.
The original complaint in this case raised the question of title, as preliminary to the partition demanded by it, and asked that the appellant’s claims of title might be quieted. We think, therefore, that this was an action to quiet title, whatever further result may have been contemplated by it, and that there was no error m granting the appellees a new trial as a matter of right.
At all events a new trial had been granted to the appellees at the February term, 1875, of the Lake Circuit Court, without objection at the time or afterward, and we are unable to see that any real question was raised for decision in this court by an exception to the subsequent granting of a new trial at the succeeding Api'ii term of that court, while the first order granting such new trial was permitted to remain in full force.
It is insisted that Morrison’s amended and supplemental cross complaint was bad upon demurrer, because neither the title-bond referred to in it, nor a copj' of such bond, was filed with such cross complaint.
A copy of this bond was, however, filed with the original cross complaint, and was referred to as having been so filed in the amended and supplemental cross complaint.
It is also objected to this amended and supplemental cross complaint, that it did not aver, in direct terms, that Morrison Avas, in any manner, the OAvner of the land in dispute, and that many of the matters recited in it were stated in such an inferential way as not to amount to distinct averments of material facts.
We are inclined to the belief that the court might have required some of the allegations of this cross complaint to have been made more certain and specific, and might have struck out some of its other allegations, as irrelevant and immaterial, but, taking all the facts stated in this cross complaint together, we are of the opinion that they amounted to an averment that Morrison had an equitable title to the land. in controversy, under Avhich he Avas in possession Avhen this suit was commenced, and that the appellant had purchased the land of Dueharme’s heirs, Avith full notice of such equitable title.
With this impression as to the legal import of the facts contained in this cross complaint, Ave are brought to the conclusion that the court did not err in overruling the demurrer to it, as complained of by the appellant.
A vendee of real estate can not hold the land against a prior equitable title, if he had notice of such prior equity before the completion of his purchase. 1 Story Eq., secs. 395, 396 ; Glidewell v. Spaugh, 26 Ind. 319 ; Walker v. Cox, 25 Ind. 271; Hunter v. Bales, 24 Ind. 299 ; Gallion v. McCaslin, 1 Blackf. 91.
If the appellant had notice of Andrew’s prior equity, as charged, when he purchased the land of Ducharme’s heirs, through Coquillard, he perpetrated AA'hat is known as a
As has been said, the matters set out by Morrison in his supplemental cross complaint amounted to allegations, that he was the equitable owner of the land in suit, and in possession when this action was commenced, and that the appellant had notice of his, said Morrison’s, equitable title, of which Andrew was then the holder, at the time he, the appellant, purchased of Ducharme’s heirs. These allegations amounted to an averment that the appellant had become the trustee of .Morrison, and was bound by whatever obligations Ducharme’s heirs were under by reason of the title-bond of their ancestor. It was, consequently, an insufficient answer to Morrison’s cross complaint, to set up the statute of limitations merely, unaccompanied by any averment showingthat the trust alleged to havebeen created had terminated. Albert v. The State, ex rel., 65 Ind. 413.
Eor these reasons, therefore, if for no other, the court very properly held the second and third paragraphs of the appellant’s answer to the cross complaint bad upon demurrer.
There was evidence tending to sustain all the material allegations of Morrison’s supplemental cross complaint. There is, in consequence, no ground upon which we can disturb the verdict upon the evidence.
Some questions' are made here upon certain instructions asked to be given by the appellant and refused by the
We are unable to see any sufficient reason for a reversal of the judgment.
The judgment is affirmed, at the appellant’s costs.
Petition for a rehearing overruled.