52 Ind. App. 40 | Ind. Ct. App. | 1911
This was an action by Heston, appellant, against Dougan, appellee, to recover the possession of certain lands alleged to be owned by appellant and occupied by appellee, as his tenant under a written lease. The issues arose on the complaint, the second paragraph of answer, which is a general denial, the amended third paragraph of answer, and appellant’s first paragraph of reply in general denial to the amended third paragraph of answer. Appellee’s first paragraph of answer and appellant’s second paragraph of reply were stricken out on motion of the opposing parties. The amended third paragraph of answer set
Trial by jury resulted in judgment for appellee.
Woollen, Spec. Proc. §1034, says: “Our statutory action for the recovery of real property is intended to substitute for the old action of ejectment, with its cumbersome machinery
The base of Lock v. Moulton (1895), 108 Cal. 49, 41 Pac. 28, is a case presenting almost exactly the same issues as the present case, being an action in ejectment, in which the defense was that the deed relied on by plaintiff was, though in form an absolute deed, in fact only a mortgage. The court refused a trial by jury of the whole cause, but tried what he called the equitable issue — as to whether the deed was intended to operate as a mortgage — without a .jury. For error in refusing to submit the entire case to the jury the case was reversed, on the ground that the allegations in the answer, to the effect that the deed was intended as mere security for a debt, do not constitute an equitable defense, in the proper sense of that term, since they might have been proved under the general denial.
The dividing line between what is a fact and -what is an opinion does not readily appear in all cases, so that we are not able to give a general rule applicable to all eases requiring the rejection as evidence of what might be termed the
Again, appellant contends that the trial court erred in giving to the jury instruction No. 14, requested by appellee, the principal objection being that there was no evidence before the jury of any relation of trust and confidence on which it could have excused the negligence of appellee in signing the deed without reading it. It is apparent from the evidence found in the record that it was contended by one party and deniéd by the other that the signature to the lease was obtained by unfair methods, that confidence of such a high degree was reposed in appellant by appellee, and he was so influenced by reason thereof, as to excuse his failure to read the lease before signing it. The question was one clearly within the issues, and on which much testimony was heard, and it was highly necessary and proper for the court to instruct the jury on this branch of the ease, which was correctly done in the instruction given. "We also find that this instruction was peculiarly applicable to the ease at bar when we read it in connection with instruction No. 2, given of the court’s own motion, and instruction No. 19, given at the request of appellant, in which the fraud and deceit referred to in instruction No. 14 are fully explained.
Note. — Reported in 96 N. E. 614. See, also, under (1, 8, 6) 2-1 Cyc. 1404; (2) 31 Cyc. 385; (7) 17 Cyc. 216; (8) 3 Cyc. 388; (9) 38 Cyc. 1748; (11) 38 Cyc. 1646; (12) 3 Cyc. 418. As to unlawful detainer, see 120 Am. St. 32. As to civil actions for forcible entry and detainer, see 121 Am. St. 369. For a discussion of the estoppel of a tenant to deny the landlord’s title in an action by the landlord to recover possession of the premises, see Ann. Cas. 1912 D 101.