81 Ind. 577 | Ind. | 1882
This was an action to recover the possession of eighty acres of land and to quiet the title thereto.
The complaint and answer were in the common form.
The suit was commenced in the county of Porter, and the verdict there was for the defendant. The plaintiffs took a new trial under the statute, and the venue was changed to Starke county. The plaintiffs’ title was a patent from the-United States to Noah Newell, dated August 20th, 1838, a deed from Noah Newell to Daniel Meeker, dated April 20th,. 1838, and a deed from Daniel Meeker and wife to William: Hagenbuck, dated May 22d, 1838. These deeds were duly acknowledged. The only evidence of the plaintiffs, except said patent and deeds, was the deposition of Joseph Hagenbuck, one of the plaintiffs, a son of said William Hagenbuck,. of Laporte county, who testified to the heirship of himself and his co-plaintiffs, and that he had lived in Laporte county thirty-five years, and had never heard his father make any claim to the land, and that he and his co-plaintiffs never paid any taxes on the land, that he knew of, and that he never knew he had any title to the land, until Weir and Biddle told him so, about a year before, and that the nature of the plaintiffs’ title was, that, if the land was theirs, they wanted it'; that he could not say whether his father had conveyed away the land or not, but that he believed, from what he had heard,, that plaintiffs had a good title.
The defendant then introduced his evidence, and the plaintiff demurred thereto, as follows:
“ And this being all the evidence given in this cause, the-plaintiffs say that it is not sufficient for the defendant to maintain his defence, and the plaintiffs therefore demur to the defendant’s evidence, and the plaintiffs pray that the defendant may be required to join in this demurrer, and the plaintiffs admit the said written evidence and all of the facts stated by the witnesses hereinbefore set out, and every inference and*579 conclusion the jury may rightfully 'and reasonably draw therefrom.”
The defendant joined in said demurrer as follows:
“The defendant joins in this demurrer to the evidence of the defendant, and says that his evidence is sufficient in law to entitle him to maintain his defence to this action, and therefore he' prays judgment.”
The court overruled the demurrer to the evidence, and found for the defendant, and rendered judgment in defendant’s favor. The plaintiffs appealed. They assign as error, overruling the demurrer to the defendant’s evidence.
In Schauber v. Jackson, 2 Wendell, 13, it was held by the Court of Errors, of New York, that a defendant in ejectment, a naked possessor without claim of right, is entitled to have facts and circumstances submitted to a jury, from which a presumption may arise of a conveyance of the estate by the lessors of the plaintiff; so that if, in the judgment of the jury, such facts and circumstances are sufficient to warrant the inference of a conveyance, they may say so, and by thus showing the title out of the lessors of the plaintiff, a defendant may protect his possession, although he may be unable to trace such title to himself. Therefore, if, from the defendant’s evidence in this case, a jury might rightfully and reasonably infer that William Hagenbuck, the ancestor of the plaintiffs, in his lifetime, after the conveyance of the land in controversy to him in 1838, parted with the title thereto, that would rebut the prima facie title of the plaintiffs, even if that evidence could be considered on such a demurrer; but this court has decided that in such a case the plaintiff’s evidence can not be considered at all. Fritz v. Clark, 80 Ind. 591. Such evidence would protect the possession of the defendant by proving the title out of the plaintiffs, and a demurrer to it ought to be overruled. The evidence of the defendant, demurred to in this case, fully warrants the inference that said Hagenbuck, in his lifetime, did part with the title to the land in controversy. It appears that the land adjoins a public high
The complaint was filed on the 12th day of October, 1875. If that date be taken as the commencement of the suit, the appellee had been in actual possession, claiming title and paying taxes, for about nineteen years. The evidence also shows that from 1838 to 1866, when he died, the said William Hagenbuck was living at Laporte, about twenty miles from the land, and tends to show that, for the last ten years of his life, he was in straitened circumstances, yet never claimed ownership of this land, or any part of it.
The evidence further shows that, in the year 1840, one Ridge-way held a note for $770.73, made by Gray, Bill & Co., payable to said William Hagenbuck, and by him endorsed to Ridgeway, and, that in that year, Ridgeway brought suit in the Laporte Circuit Court against said Gray, Bill & Co., and had an attachment issued therein, which was levied on the land in controversy, as the property of said Gray, and that, after the usual proceedings, said land was sold by the sheriff, as the property of said Gray, to the plaintiff, Ridgeway, who obtained a sheriff’s deed therefor, dated September 13th, 1841.
It further appears, that Ridgeway and wife conveyed the land to the Cincinnati, Peru and Chicago Railroad Company by deed, dated November 21st, 1853, and that said company conveyed the same to William Hanna by deed, dated May 14th, 1855, and that William Hanna conveyed the same to the appellee by deed, dated November 2d, 1855, for the sum of $500.
The evidence also tends to show that when Gray, Bill &