69 Ind. 37 | Ind. | 1879
In this action the appellee sued the appellants and one Job M. Nash, as defendants, in a complaint of a single paragraph, wherein he alleged, in substance, that, during the year 1875, from March 1st up to and after October 30th, 1875, he occupied the west half of the southwest quarter of section 1, in township 23 north, of range 5 west, as tenant of the appellant Mary Hammon, then and
The defendant Job M. Nash separately demurred to appellee’s complaint for the want of sufficient facts, which demurrer was sustained by the court, and the defendant Nash went out of the case.
The appellants’ demurrer to the complaint, for the want of sufficient facts, was overruled by the court, and to this ruling they excepted, and the appellant Mary Hammon separately answered in two paragraphs, of which the first was a general denial, and the second set up special matter, by wTay of set-off. The appellant William Hammon separately answered by a general denial. ’
The issues joined were tried by a jury, and a verdict was returned for the appellee, assessing his damages in the ,sum of one hundred and eighty-four dollars*and forty cents. The appellants’ separate motions for a new trial were severally overruled by the court, and to these decisions they severally excepted, and the court rendered judgment on the verdict, as prayed for in appellee’s complaint.
In this .court ttm following decisions of the superior ¡court have been assigned as errors .by the appellants :
1. In overruling Mary Hammon’s separate demurrer to appellee’s second reply ;■
2. In,overruling Mary Hammon’s separate demurrer to appellee’s third reply;
3. In overruling William Hammon’s separate demurrer to appellee’s second reply ;
4. In overruling William Hammon’s separate demurrer to appellee’s third reply ;
5. In overruling Mary Hammon’s motion for a new ¡trial;
6. In overruling William Hammon’s motion for a new trial; and,
7. The appellee’s complaint does not state facts suffi¡cient to constitute a cause of action.
. Before considering any of the questions presented for .our decision by these alleged errors, we may properly dispose of a motion, interposed by appellee’s counsel, to dismiss this appeal, for the reason that the defendant below
We pass now to the consideration of the errors assigned by the appellants on the record of this cause and the questions arising thereunder. The first four of the alleged errors, it will be observed, relate, to the several decisions
The fifth and sixth errors assigned are the decisions of
It is insisted by the appellants’ counsel, with much earnestness that the court erred in permitting the appellee to prove his tenancy or occupancy of the real estate described in his complaint, by parol, when it appeared that he held a written lease therefor. Ve do not think there was any error in this decision of the court. The fact of the appellee’s tenancy or occupancy of the real estate was a fact which existed independently of any written lease which he might hold, and, as such, might be shown by parol evidence. There was no attempt made to pi-ove by parol the contents of the written lease. The appellee’s action, as shown by his complaint, was founded on section 244 of the act of December 21st, 1872, providing for the assessment and collection of taxes. In this section it is provided that “When the taxes on any real estate shall have been collected of any occupant or tenant, and any other person by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover by action, the amount which such person ought to
In our view of the provisions of said section 244, above quoted, the appellee had a good cause of action, upon the facts alleged and proved by him, against the said real estate and the said Mary Hammond as the sole owner thereof, to recover back the amount of tax charged on said real estate, and collected from him as the occupant or tenant thereof, without regard to the question -whether he was the tenant of said Mary Hammon, or the tenant only of her husband,
Appellants’ counsel also complain, in argument, of the refusal of the court to give the jury an instruction requested by them. This instruction reads as follows :
“ The evidence in this case does not warrant you in finding that the plaintiff was the tenant of the defendant Mary Hammon, in the year 1875, at the time the plaintiff alleges that he was compelled to pay the taxes assessed against the land described in the complaint; and hence you must find for the defendant Mary Hammon.”
Erom what we have already said, and from the construction we have given to the section of the statute above quoted, it is certain, we think, that the court committed no error m refusing to give the jury this instruction. Mary Hammon owned the land, and, as such owner, she ought to have paid the tax assessed thereon; the appellee was the occupant of the land, and from him, as such occupant, the tax was collected; and, in such case, the statute expressly authorized the appellee, as such occupant, to recover by action agaiust the land and Mary Hammon, as the owner thereof, the amount which she, under the law, ought to have paid, and which had been collected of him as such occupant.
Erom our examination of the record of this cause, the errors assigned thereon, and the briefs of counsel of the respective parties, we have been led to the conclusion “that the merits of the cause have been fairly tried and deter
The judgment is affirmed, at the appellants’ costs.