74 Ind. App. 631 | Ind. Ct. App. | 1920
Appellant filed his complaint in this action against appellees in two paragraphs. By the first paragraph he seeks to quiet his title to certain real estate in Howard county, Indiana; and by the second he seeks to obtain a judgment for the possession thereof. Each of said paragraphs are in the simple form of actions seeking such relief, and describe the real estate as follows: Commencing at the northeast corner of the northwest quarter of section 29, township 24 north, range 3 east, as established by the United States government survey thereof, running thence west 41% feet to the center of a stone, thence in a straight line to the center of a stone at the southeast corner of said northwest quarter, thence in a straight line to the place of beginning. To this complaint appellees filed an answer in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellees. From this judgment appellant has appealed, and has assigned the action of the court in overruling his motion for a new trial as the sole error on which he relies for reversal.
On the trial there was substantial evidence tending to show that in 1912 one Phineas Rayle, appellant’s remote grantor, was the owner of the northwest quarter of section 29, township 24 north, range 3 west in Howard county, Indiana, and that appellee, Louis C. Vonderahe, was the owner of the northeast quarter of said section; that the line dividing said tracts of land was unknown to either of said owners, and by reason of such fact they were in doubt as to its location; that for the purpose of removing such uncertainty they met together in the spring of said year, and with the aid of the county sur
burden of an issue on the wrong party, such rule yields to the exception that, where the record affirmatively shows that such error was harmless, the judgment will not be reversed. Brumbaugh v. Mellinger (1918), 68 Ind. App. 410, 120 N. E. 676. In the instant case the uncontradicted evidence shows that the land in question lay on the east side of a certain fence, constructed by the adjacent owners on a line run by the county surveyor at their joint request; that appellees were in possession thereof, and based their defense on a claim that appellant was estopped from questioning either their title, or their right, to the possession of such real estate. Under these circumstances the giving of said instruction No. 1, if error, was harmless.
Appellant claims that the court erred in restricting the cross-examination of Frank Uttinger, but an examination of the record discloses that no reversible error was thereby committed. It is also claimed that the verdict is not sustained by sufficient evidence and is contrary to law. From the statement of facts given above, as to what the evidence tends to prove, and the reasons on which we have based our conclusions as to other questions presented, it is obvious that appellant’s contention in this regard is not well taken. •
Finding no reversible error in the record, the judgment is affirmed.