Meikel v. Greene

94 Ind. 344 | Ind. | 1883

Elliott, J.

Appellee claims title to the real estate in controversy through a sale made upon a decree of foreclosure,, rendered upon a mortgage executed by appellant’s grantor.

One of the points relied on for a reversal is that the description of the property is so defective and uncertain as to be void. The description reads thus: “ Part of lot number nine (9), in square number fifty-five (55), in the city of Indianapolis, bounded and described as follows: Beginning thirty-nine (39) feet from the most southeast corner of said lot number nine (9); thence east on the north line of Washington street seventeen (17) feet; thence north one hundred and twenty (120) feet to an alley; thence west^along the south line of said alley seventeen (17) feet; thence south one hundred and twenty (120) feet to the place of beginning.”

We think that this description furnishes means of identifying the particular parcel intended to be conveyed, and' is, therefore, sufficient. We do not understand that it is the office of the description to identify the particular parcel, but to supply the means of identification. Where means of identification are furnished, persons interested in the property may always make the description certain by referring to the sources of knowledge supplied by the deed. In the present instance the corner of lot nine can be ascertained from the public record, and this once ascertained there can be no difficulty in running the boundary lines. The sheriff can readily execute the writ, and this proves the description to be sufficient.

It was proper for the appellee to introduce in evidence the recorded plat of square .fifty-five. In actions to recover real property, it is competent to give evidence which will enable the court to identify the particular parcel involved in the legal contest.

The propertyin controversy wasbid in by Joseph A. Moore, and on the 10th day of November, 1879, the sheriff’s certificate was assigned to appellee, Jacob L. Greene, a resident of Connecticut, who received a deed from the sheriff. The title of appellee, although the deed on its face conveyed to him in his own absolute right, was that of trustee for a foreign corporation. The trust was not, however, created by any deed or instrument of writing, but arose by operation of law, from the fact that the purchase-money was paid by the corporation for whose benefit the appellee orally agreed to hold. The act of 1879 does not apply to such a case; it applies only to cases where there is an express trust created by deed, mortgage or other written instrument. Rinker v. Bissell, 90 Ind. 375.

There was no conflict in the evidence, and no questions of fact to be argued to the jury, and the court did not err in refusing to allow appellant’s counsel to make an argument to the jury. The whole case turned upon questions of law, and these .were fully argued to the nourt, and it was, therefore, right to deny further discussion, for juries in civil cases are not judges of the law.

Filed Dec. 21,1883. Petition for a rehearing overruled April 4, 1884.

The court did right in instructing the jury to find for the appellee. There was no conflict in the evidence, and the trial court did no more than its duty in directing a verdict.

Judgment affirmed.