Jacqua v. Heston, 81 Ind. App. 142

81 Ind. App. 142 | Ind. Ct. App. | 1924

Dausman, P. J.

(after stating the facts) :

The undisputed evidence shows that lot 114, as originally designated on the recorded plat, is 112 feet deep, measured east from Bridge Street. How far, if at all, does the tract conveyed to Bettie Farris Heston extend into lot 113? If the southwest corner of lot 114, as originally designated on the plat, be taken as the point of beginning, then it follows, as a matter of -computation, that her tract extends twenty feet into lot 113. By the seventh paragraph of the special finding, the court fixes the east line of her tract thirty-two feet east of the west line of lot 113 — an excess of 12 feet. This error alone requires a reversal. The controversy, however, involves another feature.

The appellant Judson A. Jacqua presents the following contention:

That when a portion of Bridge Street was vacated, as shown by the third paragraph of the special finding, the boundary lines of lot 114, as originally designated on the recorded plat, were readjusted by sheer force of law, so as to include the vacated portion of the street. In other words, that when that portion of the street was adjudged vacated, then, by operation of law, the southwest corner of lot 114 was fixed at a point thirty-two feet west of the corner as shown by the original lines on the recorded plat. On that basis, the tract conveyed to Bettie Farris Heston does not extend into lot 113, but the east line of her tract is twelve feet west of the west line of lot 113.

The foregoing contention is prima facie valid. Bergan v. Co-operative Ice, etc., Co. (1908), 41 Ind. App. 647, 84 N. E. 833; City of Mt. Carmel v. Shaw (1895), 155 Ill. 37, 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. 311; Brackney v. Boyd (1919), 71 Ind. App. 592, 123 N. E. 696, 125 N. E. 238; §8912 Burns 1914, Acts 1907 p. 617.

The appellee has filed no brief, and in the circumstances of this case, justice requires that the failure to file a brief shall be taken as a confession of error.

The statement in the deed executed by Catherine Heddon to Albert Newman to the effect that the grantor thereby conveys “part of lots 113 and 114” is a general statement in the nature of a conclusion and must yield to the particular and specific description given in measurement and directions. The same principle is applicable to the deed from Newman to Heston. The application of that principle harmonizes all the conveyances involved.

The judgment is reversed and the trial court is directed to grant a new trial.