Kinney v. Doe ex dem. Laman

| Ind. | May 24, 1847

Blackford, J.

This was an action of ejectment brought by the lessee of Laman and others against Kinney, for a lot of ground in Terre-LIaute. Plea, not guilty. Verdict for the plaintiff. Motion for a new trial overruled, and judgment on the verdict.

The plaintiff proved that the lessors were the heirs of James Henderson, deceased, and showed a conveyance to Henderson of the premises, executed by one Robert Kerr and his wife in April, 1825. It was proved that, in 1822, Kerr had possession of the premises and was residing on them with his family; that from August in that year some time in 1823, one Buxton lived in the house on the lot as tenant of Kerr; that Osborn succeeded Buxton as occupier of the premises; that Osborn became a tenant of Kerr in 1823, and paid rent to his agent for the lot until the 30th of December, 1824; that Osborn continued in possession until 1828 or 1830; and that the defendant, Kinney, succeeded Osborn in the possession. This was the plaintiff’s evidence, and he showed by it a prima facie right to a verdict.

The defendant relied on a sale of the lot to John Campbell for county taxes assessed against Kerr in 1822, a conveyance of the lot by Campbell to Osborn in May, 1825, and a conveyance of the lot by Osborn to him, the defendant, in 1828. The defendant, in attempting to prove the sale of the lot for taxes to Campbell, offered in evidence the assessment-roll of county taxes for 1822 signed by the lister, without proving that the valuation of the town-lots had been made by the lister and two householders. The evidence was objected to, because the assessment had not been legally made, and the objection was sustained. If this evidence was correctly rejected, the defendant cannot complain of the verdict, for the sale for taxes cannot be supported without proof of an assessment. We think the decision of the Court is right. The evidence was not admissible without proof that the assessment had been legally made. It could not be legally made, so far as the valuation of town-lots was concerned, except by the lister and two householders appointed by him. Acts of 1820, p. 150. The assessment-roll, therefore, was,inadmissible for the purpose for which it was offered, without proof that the lots had been valued by the lister and two householders.

% There is another point in this case. Osborn became possessed of the premises as tenant to Kerr in 1823; and it is made a question whether he himself, or the defendant who claims under him, could show that previously to that time, viz., in 1822, Kerr’s title was divested by a sale of the lot for taxes assessed against him. This question must be decided against the defendant. He cannot say that at the time Osborn, under whom he claims, became Kerr’s tenant, Kerr had no title to the lot. A tenant may show that after the commencement of the tenancy, his landlord’s title had expired: but by becoming a tenant, he admits that at the time the tenancy commenced his landlord’s title was good, and neither the tenant, nor any one claiming under him, can a^terwarc^s say the contrary.

S. B. Gookins, for the plaintiff. . W. D. Griswold, J. P. Usher, and R. C. Gregory, for the defendant. Per Curiam,.

The judgment is affirmed with costs.