76 Ind. 24 | Ind. | 1881
Action by the appellants against the appellee for the partition of real estate. It is assigned for error that the circuit court erred: 1. In overruling the demurrer to the sixth paragraph of answer ; 2. In overruling the motion of the appellants for a new trial; and, 3. In overruling their motion for a judgment in their favor upon the finding of the court.
This is the third appeal in this case. See the opinions in Nicholson v. Caress, 45 Ind. 479, and Nicholson v. Caress, 59 Ind. 39, from which the nature of the case and the facts involved maybe learned. The complaint remains unchanged; but, instead of the answers and cross complaint brought here on
The sixth paragraph of answer, whose sufficiency upon demurrer for want of facts must be determined, is as follows :
“6th. And said defendant, for further and sixth answer to the plaintiffs’ complaint, denies that any tenancy in common has existed between himself and plaintiffs in the said lands, and ( — ) that for fifteen years last passed he, defendant, and those under whom he claims title, have been in, and held, sole, exclusive and undisputed possession of the real estate in the complaint mentioned, under claim and color of title, openly, notoriously, continuously, and adversely to every other claim or title whatsoever.
It may be observed that this paragraph affirms nothing. It contains only the one verb, denies, and, literally construed, denies any tenancy in common, and denies that, for fifteen years last passed, the defendant had been in the adverse possession of the land. It may be conjectured that the pleader’s meaning would be expressed by supplying the word avers in the place indicated by the parenthesis. So interpreted the answer is not good. The complaint states facts which, as this court on the former appeals held, show a tenancy in common between the parties. Without denying these facts,
The appellants urge that, besides reversing the judgment of the circuit court, we shall order a judgment for them, in-' sisting that, upon the pleadings and evidence, such an order would be proper. We think otherwise. Whatever the evidence may be, there is no finding upon which such a judgment can rest, and where there are issues of fact in a case, neither party can have a judgment in his favor unless he has a finding or verdict to support it.
The judgment is reversed, with costs, and with instructions to sustain the demurrer to the sixth paragraph of' answer.