80 Ind. App. 504 | Ind. Ct. App. | 1921
This is an action on the part of appellant against appellees to quiet his title to an undivided one-half of certain real estate, to have partition thereof, and for an accounting; and on the part of appellee Horace G. Brown, by a cross-complaint, to quiet his title to all of said real estate, and in the event such a decree is denied him, that he have a lien adjudged against the same in his favor. There are also cross-complaints by other appellees, setting up their respective interests, and asking that they be protected. Issues were duly joined upon the complaint and cross-complaints, and on
The only error assigned, on which appellant has stated any proposition or point, is based on the action of the court in overruling his motion for a new trial. The specific contention being, that the finding of the court to the effect, that appellee Horace G. Brown and his father, have been, successively, in actual, open, notorious, uninterrupted, exclusive and adverse possession of the real estate in suit, continuously, since 1886, and that said appellee alone had been in such possession, continuously, for a period of more than twenty years, is not sustained by the evidence. As bearing upon this contention- we note that there is substantial evidence tending to show, that one Samuel Keyser departed this life in 1839, seized of the real estate in suit, which is located in Hamilton county, Indiana; that on and after the death of said Keyser the title to said real estate, by the laws of descent, devises, and deeds of conveyance, passed to appellant and one James K. Boyd, as tenants in common, each being the owner of an undivided one-half thereof; that on August 17, 1886, said Boyd and his wife executed a warranty deed for all of said real estate to one. Daniel R. Brown, the father of appellee Horace G. Brown; that said Daniel R. Brown on October 19, 1886, caused his said deed to be duly recorded in the office of the recorder of Hamilton county, Indiana; that immediately, or soon after obtaining a deed for said real estate, the said Daniel R. Brown entered into the possession thereof, and thereafter performed such acts with reference thereto, as were consistent with ownership; that said Daniel R. Brown departed this life testate, on March 11, 1893, in possession of said real estate, by virtue of said deed, and
We do not understand that appellant denies that there is evidence tending to establish the facts stated, but insists that the finding of the ultimate fact in question is not warranted, because the undisputed evidence shows, that he and the said James K. Boyd were tenants in common of the real estate in suit; that after the conveyance by the latter to Daniel R. Brown, he and said Brown became tenants in common thereof, and that after the death of the latter, he and appellee Horace G. Brown bore the same relation thereto. Based on these facts he contends that since the possession of one tenant in common is the possession of all in the absence of actual knowledge, that the' tenant in actual possession is asserting an adverse
This leads us to consider whether appellant’s said co-tenants asserted claims to the real estate in suit adverse to him, and whether he had constructive knowledge thereof. Where a party obtains a deed from one of two or more cotenants for the whole estate in lands, and takes possession of the same in pursuance thereof, it will be presumed, the contrary not appearing, as is true in the instant case, that, in so doing, he intended to assert all the rights which his grantor had assumed the authority to invest in him. King v. Carmichael (1893), 136 Ind. 20, 35 N. E. 509, 43 Am. St. 303; Price v. Hall, supra. On the question of constructive knowledge it should be noted, that said Daniel R. Brown had his deed to the real estate in suit from James K. Boyd duly recorded in 1886 in about two months after its execution. This had the effect of giving appellant constructive knowledge of the intention of the grantee therein to claim title to the whole
It is contended that appellee Horace G. Brown is estopped’to deny that appellant has an interest in the real estate in suit, by reason of a contract executed by him, containing a lease to the Hamilton Chemical Company for a portion thereof, and an option to purchase the same, in which he agreed to hold one-half of the rents received therefrom in trust for his cotenants, after making certain deductions.. We are unable to give this contract the effect, for which appellant contends, as the evidence discloses it was executed on February 22, 1915, over twenty-nine' years after Daniel R. Brown had obtained a deed for all of said real estate and had the same duly recorded, and the court may have found that the title of appellee Horace G. Brown to the undivided one-half thereof, now
Appellant finally asserts that the evidence shows two other significant facts, that of themselves ought to be controlling in his favor on the question under consideration, viz.: (1) That the real estate in suit remained on the transfer records in the office of the auditor of Hamilton county, Indiana, in the name of Keiser Heirs, and D. R. Brown from 1886 to 1903, and in the name of Keiser Heirs and H. G. Brown from the latter date to the present time. (2) That the tax duplicates of said county show, that during the greater portion of said periods said Browns only paid one-half of the taxes on said real estate, and the Keiser Heirs paid the remaining one-half thereof. Based'on these alleged facts, appellant contends, that the finding in the particular challenged is not sustained by the evidence, as it discloses thereby that each of said Browns recognized, within the period necessary to bar his right of recovery, that he had an interest in said real estate, and hence were not holding the same adverse to him. As to the first alleged fact it suffices to say, that its existence is the result of a mere clerical act of a public officer, without a showing that either of said Browns were in any way responsible therefor, or had any actual knowledge thereof, and it is certainly not a record, giving constructive knowledge of a fact, by which they would be bound, unless they secured a change therein,