149 Ind. 83 | Ind. | 1897
This action was instituted by appellants against appellees, John C. and Mary J. Lunsford, to recover possession of, and to quiet their title to the following described real estate, situated in Daviess county, Indiana, to wit: Beginning 168 90-100 rods north of the southeast corner of section 18, township 2 N., R. 7 west, running thence due west to Veal’s Creek, thence up said creek with the meanders thereof to the boundary line of said section, thence south to the place of beginning.
The defendants answered the complaint by a general denial. The question of title which appellants seek to present arises on the special finding of facts and the court’s conclusion thereon. The facts found by the court are in the main substantially as follows: Plaintiffs and defendants claim their respective titles to the land in dispute through one James C. Veal. On March 23, 1877, one John Scudder owned and held a judgment unsatisfied against the said James C. Veal, which was a lien on the said lands. On April 4, 1883, the sheriff of Daviess county, Indiana, executed a sheriff’s deed to William F. McDougal, to the following lands in said county: All that part of section 18, township 2 N., R. 7 west, more particularly described as follows: Beginning 1681-2 rods N. of the S. E.
1st. That Jas. C. Veal, on and prior to April 4,1883, was the owner in fee of the real estate in dispute, subject to the mortgage liens of John Scudder, William H. Dillingham and others, and on said date the sheriff conveyed all of his and his wife’s interest in said lands to William F. McDougal.
2d. That the deed of McDougal, O’Neal and Heffron, of April 17, 1883, operated to convey all of the interest of said McDougal in said lands to Thomas B. Graham.
3d. That the judgment lien of John Scudder, of date March 3, 1877, was superior and paramount to the interest and title which said Graham acquired to the lands, under the said deed of McDougal, O’Neal, and Heffron.
4th. That the title acquired by McDougal in the real estate in question, under the sheriff’s deed of May 12,1890, was superior to the title then owned and held by Graham to the land, under his deed from Mc-Dougal, O’Neal, and Heffron.
5th. That the judgment of the court in the action instituted by Mrs. Graham quieted the title of Mc-Dougal to the lands.
6th. That the judgment of the court in the action of the appellees against the appellants in October, 1893, did not pass upon, adjudge, or determine the title to the real estate, or in any manner change, modify, or
7th. That the defendants are entitled to a judgment for cost.
The court rendered its judgment that the plaintiffs take nothing by their action, and that the defendants recover cost. Under the provisions of section 1069, Burns’ R. S. 1891 (1057, R. S. 1881), and a rule well affirmed by repeated decisions of this court, the appellants, in order to prevail in this suit, must do so on the strength of their own title. The burden was east upon them to show a sufficient title to the lands in dispute; and the failure of appellees to establish any title thereto could afford the former no ground whatever for a recovery. It is evident, therefore, under the facts as found by the court, that the appellants fell far short of establishing title to the tract of land which they sought to recover. Their counsel insist that Mc-Dougal must be held not only to have quitclaimed his interest in the lands to Thomas B. Graham, by joining in the O’Neal and Heffron deed, in which the latter conveyed and warranted, but he must be deemed and held also to have joined them in their warranty, and was thereby estopped from asserting any after-acquired title to the lands, as against said Graham or those claiming through him. But if this contention should be conceded as correct, it could not avail appellants in this action, for it appears that in 1888, five years after the execution of the McDougal and O’Neal deed to Graham, in an action by the widow of the latter, who claimed title under his will, McDougal succeeded in quieting his title to the lands in controversy, as against Mrs. Graham and all persons claiming through her. If it could be said that McDougal was estopped by any covenants of warranty, such estoppel could be of no avail in consideration of the decree
It is disclosed by the facts that after the rendition of the judgment quieting the title in McDougal, and after the survey mentioned in the special finding, he used and controlled the land until he conveyed it to the appellees in 1890. It further appears by the special finding that the appellees, in 1893, unsuccessfully prosecuted an action in ejectment against appellants to recover possession of the land in question, and that a judgment was rendered in that suit in favor of the latter for cost. This, it is contended, operates as an estoppel against the appellees, and affords the appellants the right to recover in this action. But appellees are not seeking to recover or quiet any title to the land in suit, and it is clear that under the circumstances the judgment in that action cannot be invoked in this suit by appellants to support their title to the premises in controversy. This, we think, is so evident, under the facts, that the question may be dismissed without further consideration. See Black on Judgments, sections 650, 654, and 655; Freeman on Judgments, sections 295, 300, and 301.
Appellants having failed, under the facts, to establish title to the land, the judgment below, so far as they are concerned, is a correct result, and is therefore affirmed.