50 Ind. App. 384 | Ind. Ct. App. | 1912
— This is a suit in ejectment by appellant against appellees. Answer, general denial. Trial by jury and verdict for appellees, in pursuance of a peremptory instruction directing the verdict.
A motion for a new trial was overruled, and the court’s action in so doing is the error relied on for reversal.
This is the second appeal in this case. Bivens v. Henderson (1908), 42 Ind. App. 562, 86 N. E. 526.
Several reasons were assigned for a new trial, all of which relate either directly or indirectly to the exclusion of certain testimony offered by appellant, who asserts title to the one-fifteenth part of the real estate involved in the suit.
Appellees hold title by virtue of a tax deed, and appellant’s contention is that the deed is ineffectual to convey
Appellant’s counsel in their brief say: “The only defect appellant’s counsel could find in the proceedings leading up to the tax-sale in 1891 was the failure of the county treasurer to verify, by oath or affirmation, as required by law, his return of lots and lands delinquent for that year. Repeated efforts were-made on appellant’s part to make this proof, but the court below ruled that the proffered evidence was inadmissible. In line with the ruling was the peremptory instruction given by the court directing the jury to return a verdict for defendants. * * * Our contention is that the absence of such a verified ‘return’ vitiated the whole sale. ’ ’
The testimony excluded by the court was an offer to prove by two deputy auditors of Marion county, Indiana, that the treasurer’s return of lands and lots delinquent for nonpayment of taxes for the years 1889 and 1890 was not verified as required by the statute.
It was shown that the alleged owner at the time of the sale was a resident of the State of Kansas. The court clearly decided that the verification, of the return was not necessary to a valid sale, and was not required by the section of the statute controlling the question. Also, that the statute applied only to resident delinquents. No other defects in the sale are, or were suggested. The question of the admissibility of proof showing the want of such verification is therefore res adjudicata, and the offered evidence immaterial to the question in issue.
The rulings on the other questions presented by the motion for a new trial are necessarily determined by the foregoing propositions.
The court did not err in overruling the motion for a new trial.
Judgment affirmed.
Note.- — Reported in 98 N. E. 421. See, also, under (1) 3 Cyc. 472; (2) 37 CyC. 1457; (3) 37 Cyc. 1377, 1461. As to the effect of recitals in a tax deed, see 31 Am. St. 233.