7 Ind. App. 160 | Ind. Ct. App. | 1893
Several errors are assigned, but the entire case turns on the question as to the ownership of the platform scales in question. There is no conflict in evidence or controversy as to the facts.
Joseph W. Talbott, the owner of the adjacent real estate, erected the scales in the street. Afterwards, when he became insolvent, he made an assignment, under the statutes, to R. R. Jones, for the benefit of his creditors. Jones, as such assignee, sold the scales as personal property to appellee, which sale was reported to and confirmed by the court. On the next day, the assignee sold the real estate to one Bradley, who knew that Whitlock had bought the scales the day before. Bradley after-wards sold the real estate to appellants, who then knew that appellee had previously bought and paid for 'the scales. Later, appellants purchased the inchoate interest of Talbott’s wife in the real estate, and subsequently appellee removed the scales. On this state of facts appellants seek to recover the value of the scales, or the damages sustained by reason of the alleged trespass on the real estate.
It is insisted by appellants:
1. That the title to this part of the street on which the scales were located was in the adjacent owner, subject
2. That the scales were a part of the real estate.
3. That through the conveyance of the trustee, and of the wife of Talbott, the title to the scales was vested in them.
The claim of appellants- is purely technical. They evidently did not understand that they were purchasing or paying for the scales. The question is, however, what are the rights of the respective parties, whether technical or equitable?
If it were conceded — which we do not decide — that the owner of the adjacent real estate held title to the center of the street, in this case, subject only to the public easement, and that the scales were a part of the real estate, yet we are of the opinion that, under the undisputed facts disclosed by the record, appellee had the right to remove the scales.
It clearly appears that all of the parties, especially appellants, knew that appellee had bought and paid for the scales, before any sale or conveyance was made of the real estate. Under the circumstances, it would certainly be unjust and inequitable to hold that appellants acquired the scales through the conveyance executed by the trustee. It is insisted, however, that the wife of Talbott was not in any manner bound by any such act or agreements of the trustee and other parties, and that appellants obtained title to the scales, through her subsequent conveyance of an undivided inchoate interest in said real estate. We can not concur in this view. See Duncan v. City of Terre Haute, 85 Ind. 104.
The scales having been treated as personal property by the trustee, with the sanction and approval of the court having jurisdiction of the estate, and without objection of any of the parties interested, our conclusion is, that,
Judgment affirmed.
