65 Ind. App. 532 | Ind. Ct. App. | 1917
This is an action for damages for trespass upon real estate brought by appellant against the Jeffersonville, New Albany and Sellersburg Rapid Transit Company, the Southern Indiana Interurban Railway Company, and the Louisville and Southern Indiana Traction Company. The case was tried on an amended complaint in one paragraph and separate answers by each of the defendants which included the general denial; a plea of the statute of limitations; that the real estate had been duly appropriated by the Jeffersonville, New Albany and Sellersburg Rapid Transit Company; and that the real estate described in the complaint was a public highway. Appellant filed a reply in general denial to each of the special answers. At the close of plaintiff’s evidence the court gave a peremptory instruction in favor of the defendants, and the jury returned a verdict in favor of each of the appellees. Appellant’s motion for a new trial was^ overruled and judgment rendered on the verdict. The overruling of the motion for a new trial is the error assigned and relied on for reversal of the judgment.
The gist of the amended complaint is that on and prior to the time of the alleged trespass appellant “was the owner in fee simple and in possession of certain real estate” therein described, and that except as wrongfully excluded therefrom by appellees she is still the owner and in possession of said real estate. Facts are averred to show the incorporation of appellees and the successive transfer, ownership and operation of the line of road on or near the property of appellant de
The motion for a new trial contains thirty-eight alleged reasons, among them, that the verdict of the jury is not sustained by sufficient evidence; error in instructing the jury to find for the defendants, and numerous alleged errors in excluding evidence offered by appellant.
Appellant offered in evidénce a certain deed of partition executed in October 1854, by and between three persons, by means of which certain real estate was conveyed to one Garnett Duncan, of which the land described in the amended complaint is a part. Appellant
Before offering the deed appellant proved by W. T. Ingram, her husband, that he procured the deed from Kate B. Lewis and others to appellant, Anna L. Ingram; that he knew Kate B. Lewis and she was the daughter of Blanton Duncan; that for five years prior to September 7, 1889, he had a lease on the real estate described in the deed; that he paid the rent therefor to Judge Jewett as attorney for Kate B. Lewis; that he purchased the real estate from Kate B. Lewis and others and had the title conveyed to his wife.
The deed excluded is set out in the record. An examination of it shows that it was executed in the state of California on September 7, 1889, by Thomas A. Lewis, trustee of Kate B. Lewis, and Kate B. Lewis and Thomas A. Lewis, her husband, and Blanton Duncan, trustee under the will of Garnett Duncan, and Blanton Duncan and Mary Duncan, his wife, “parties of the first part and Mrs. Anna L. Ingram, of Jeffersonville, Indiana, of the second part, witnesseth that the said first parties have sold and conveyed and by this deed do hereby sell and convey, with general warranty, to Mrs. Anna L. Ingram, for the sum of” $2,178.75, certain real
The trial court therefore erred in overruling appellant’s motion for a new trial. The judgment is reversed, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 116 N. E. 12. Trespass: possession of plaintiff, sufficiency of, to maintain action, 72 Am. Dec. 123. See under (1) 13 Cyc 526; (6-8) 38 Cyc 1004.