127 Ind. 400 | Ind. | 1891
On the 1st day of May, 1887, David P. Bainer recovered judgment against Marcellus Burton and others, and on the 11th day of September, Bainer assigned the judgment to the appellee. On the 23d day of October, 1880, Richey, the appellee, caused an execution to issue on the judgment, and on the 11th day of December the sheriff sold the land in controversy to the appellee. A certificate was issued to the appellee, and, at the proper time, a deed was executed to him. At the time the judgment was rendered Burton was the owner of the land, but subsequently conveyed it to the appellant, who took possession of the property. At the time the appellant took possession there was a house on the land, but it was consumed by fire on the
The facts fully justify the conclusion that the appellant was wrongfully in possession of the land, and without right excluded the appellee, for the latter became the owner by virtue of the sheriff’s sale and deed. The title of the appellee relates back to the rendition of the judgment (Paxton v. Sterne, ante, p. 289 ; Wright v. Tichenor, 104 Ind. 185; Orth v. Jennings, 8 Blackf. 420), hence the appellant was, after the expiration of the year for redemption, wrongfully in possession of the property, and the appellee was entitled to a judgment for possession and for damages. The decision in Dobbins v. Baker, 80 Ind. 52, is not opposed to this conclusion ; on the contrary, it gives it full support.
Counsel is in error in asserting that the court allowed damages for the house destroyed by fire.
The judgment in favor of the appellee is so clearly right that there is little reason for discussion.
Cross-errors have been well assigned by the appellee, and he has adopted the appropriate mode of presenting the questions his counsel has argued. He moved for a new trial and reserved the proper exceptions. This correctly presents the
The question presented by the assignment of cross-errors is as to the right of the appellee to recover for the house burned during the appellant’s occupancy of the property. There is no finding that there was any negligence on the part of the appellant or his tenant, and, as the presumption is ordinarily against culpable negligence, we must assume that there was no negligence. See authorities cited note 2, p. 639, Elliott Roads and Streets. It must, under this familiar and settled rule, be assumed that there was no culpable negligence, and, as a necessary sequence, that the fire was the result of an accident. The general rule is that for loss resulting from an accident there is no liability in eases not arising out of contract. Nave v. Flack, 90 Ind. 205 (210); Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404 (411); Beatty v. Gilmore, 16 Pa. St. 463; Hale v. Smith, 78 N. Y. 480. If this case can be taken out of the general rule it must be for the reason that the appellant wrongfully continued in possession, for his entry into possession was rightful. He was not a mere trespasser in possession without color of right, and can not be
We have examined the question upon the theory adopted by counsel, but it is proper to say that under the rule declared in Bottorff v. Wise, 53 Ind. 32, it seems that, even if a right of action existed, it could not be made available in an action for the recovery of real estate. It is, however, unnecessary to do more than make a passing suggestion upon this point.
Judgment affirmed, with five per cent, damages.