1 Ind. App. 244 | Ind. Ct. App. | 1891
Sarah Shafer was the owner for life of one hundred and sixty acres of land in Carroll county, Indiana, on the 23d day of July, 1886. She executed a written lease to the appellee, John Reef, for said premises, conditioned as follows, viz.: She leased said premises, with the appurtenances, commencing on the 1st-day of September, 1886,. and ending on the 1st day of September, 1887, and another year should she survive. The lessee agreed to occupy the premises in a careful and tenant-like manner, and pay as rent therefor the sum of three hundred dollars per year; one hundred dollars due September 1st, 1886, fine hundred dollars
The appellee went into the possession of the premises under said lease on the 1st day of September, 1886, and paid the lessor the rental for that year ; that, about the 1st day of September, 1887, he paid the lessor $100 on the second year’s tenancy, and on the same day executed to her two promissory notes for $100 each, for the balance of the rental for the second year, due March 1st and September 1st, 1888. The lessor died on the 20th day of November, 1887, but before her death appellee sowed forty acres of the premises in wheat, and remained in possession of the premises with the knowledge of the appellants, and without objection on-their part, until the latter part of January, 1888, when appellants requested appellee to pay them their share of the note due March 1st, 1888, executed to the lessor in her lifetime; that the unpaid notes were in the appellants’ possession, and about the 1st day of February, 1888, appellee paid the appellant Irene Lowrey her share of the note due March 1st, 1888, to wit, $84.10. The note was left in her possession until the remaining one-sixth should be paid to Rebecca Jarvis, the owner in fee of the one-sixth of said premises. No demand
The complaint is an action for trespass against the appellants, who are husband and wife, and is in two paragraphs. The first paragraph alleges that the appellee was in possession, and entitled to the possession of the real estate described; that the appellants, on the -— day of-, 1888, and on divers other days between that day and the beginning of this action, and each of them, wrongfully and unlawfully, and without leave of the plaintiff, entered in and upon said real estate then and there lawfully in possession of the appellee, destroyed the pasture land on said reál estate by chopping down trees and piling brush on said land, and by hauling logs and wood upon and out of said pasture land when the ground was soft, by pasturing said lands with cattle and hogs in great numbers for a period of three or four months ; that said pasture land was a portion of said real estate, and the possession of which had been in said appellee for eighteen months last past, and that appellee was entitled thereto; that appellants, and each one cf them, had for a period of three months last past taken possession of said pasture land and converted the same to their own use, and prevented appellee from enjoying the use and the benefit of said pasture l^nd for a period of three months, etc.
The second paragraph avers substantially what is averred in the first paragraph, except it alleges that appellants entered upon said premises, took possession of a sugar camp thereon, tapped the trees to the number of about two hundred, made molasses out of the sugar water collected from said camp on said premises, and converted- the same to their own use, etc.
The court permitted the appellee to amend his complaint
The appellants answered by general denial, and by a second paragraph, which seeks to justify their acts on the ground that they were the owners and entitled to the possession of the premises at the times the various acts of trespass were alleged in the complaint to have been committed.
On the trial of the cause a verdict was returned in favor of the appellee for $60. There was a motion for a new trial, which was overruled and judgment rendered on the verdict.
Error of the court in overruling the motion for a new trial is the only error assigned.
It was admitted on the trial that the appellant Irene Lowrey owned in fee simple five-sixths of the one hundred and sixty acres of the land; that she owned the fee simple of all the lands where it is alleged said trespasses were committed, and so owned the fee simple in said land at the time when it is alleged said trespasses were committed; that Sarah Shafer, on the 23d day of July, 1886, was the owner of the life-estate in said lands, and that she continued to hold a life interest therein until the 21st day of November, 1887, when she died.
The appellants’ motion for a new trial contained forty-one causes, the first two presented are, the verdict of the jury is not sustained by sufficient evidence, and is contrary to the evidence.
The verdict of the jury is contrary to law. It is unnecessary here to reiterate the rule of law of the Supreme Court so familiar, that a case will not be reversed where there is evidence tending to sustain the judgment. There was much conflict in the evidence, but the evidence was sufficient to result in a verdict for the appellee. We can not interfere with the finding. As to the second assignment that the verdict is contrary to law, a more important question is presented, and, perhaps, one of more vital importance than any
The third assignment of error is, “ the, damages found by the jury are excessive.”
There was much evidence as to the tearing down of fences, cutting down timber, as to cattle, horses and hogs running on the enclosed lands, as to tapping sugar trees, using the water therefrom in making molasses, the evidence of the value of the pasture land, sugar camp, etc.
The appellee states in his evidence that his fence was torn down and appellants refused to allow him to rebuild it; that he thereby lost the use of his pasture for his hors.es, hogs and cattle to his damage of $75.
There is nothing in the evidence on the question of damages that would justify an interference with the judgment.
The appellants, in the motion fora new trial, assign thirty-four alleged errors committed by the court, in the admission of certain evidence, the refusal to admit certain evidence, and in refusing to strike out certain evidence. It would be im
The appellants insist that the court erred in allowing appellee to introduce evidence of .acts of trespass occurring after the filing of the original complaint and before trial. The court did sustain appellants’ objection to such evidence, but an offer by appellee to make such proof caused the appellants to withdraw the objection, and the court allowed the appellee to amend his complaint to conform to the evidence, and the evidence went to the jury without objection, and if such was error the appellants have not properly saved the question for this court, as no bill of exceptions was filed setting forth the ground of complaint, which is the proper and only way in which that question can be determined by this court.
The appellants contend that the court erred in instructions given to the jury of its own' motion, in giving instructions asked for by the appellee, and in refusing and modifying instructions asked for by the appellants.
We have carefully examined the instructions given by the court of its own motion and those given by the court at the request of the appellee. The instructions as given contain as a whole a correct statement of the law, and embrace the issues in the case. Those refused presented the theory of the case as claimed by the appellants, but, under the issues and
The court committed no error in the instructions given and iu refusing to give those asked for by the appellants.
There is no error in the case for which it should be reversed, but it is affirmed, at appellants’, costs.