30 Ind. 163 | Ind. | 1868
Suit by the appellants against the appellees to “ recover real property.” The complaint is in the statutory form, averring a legal title to the possession.
The defendants answered, that on the 1st of September, 1853, “The Cincinnati, New Castle and Michigan Railroad Company,” for the purpose of borrowing money with which to buiid her road, issued bonds to the amount of seventy-five thousand dollars; and, for the purpose of securing the payment of said bonds, by a deed of trust and mortgage, a copy of which is made a part of the answer, conveyed to Thomas J. Sample and Thomas Corwin real estate, including the lands in suit, to the value, as appraised in said mortgage and deed of trust, of ninety-three thousand dollars ; that it was agreed and provided in said deed, that whenever said company should sell any portion of said lands, and surrender to said trustees an amount of said bonds so issued and secured equal to the value of the portion of said lands so sold as appraised in said deed of trust, said trustees should'-execute a conveyance in fee simple for said lands so sold to the purchasers designated by said company, and said bonds should be canceled and destroyed; that the name of said corporation was afterwards legally changed to that of “ The Cincinnati and Chicago Railroad
The trust mortgage made a part of the answer was the same mentioned in Rowe and Another v. Beckett and Another, at this term. The deed from the trustees to Lupton is the same in form as that from the trustees to James Sample. Lupton conveyed the land to Lewis, July 23d, 1858, by a deed of bargain and sale, with this covenant: “The grantor hereby covenanting with the grantee, his heirs and assigns, that the title so conveyed is clear, free, and unincumbered, and that he will warrant and defend the same against all claims whatever.”
The appellants demurred to the answer, for the following grounds of objection: 1. The said answer does not state facts sufficient to constitute a defense to the action. 2. Each of the several parts of said answer is not stated with sufficient certainty and definiteness. 3. Each of the several parts of said answer is matter that the defendants are estopped to set up in defense of this action.
The demurrer was overruled, and the plaintiffs excepted. The case went to issue, and was tried by the court; finding for the defendants. A motion for a new trial was overruled.
The questions involved in this case are raised-by the demurrer to the answer. With two exceptions they are the same as those involved in Rowe and Another v. Beckett and
The judgment is affirmed, with costs.