Smith v. Anthony

16 Ind. 267 | Ind. | 1861

Pejrkins, J.

Suit to recover possession of real estate. Judgment for the plaintiff. The bill of exceptions states, that “ the following was all the evidence produced by either party.” It is objected that this statement does not comply with rule 30, requiring Pills purporting to contain the evidence to state that “ this was all the evidence given in the cause.” The objection is well taken. Evidence by way of admission, or that was obtained by the Court of its own motion, not technically produced by either party, may have entered into the cause. Besides, the rule is positive as to the language to be used. See the rule, Ind. Dig., p. 72. See cases on Bills of Exception, Ind. Dig., p. 186. There were two defendants, who answered separately. One of them, John Smith, answered by general denial, and this, under the act of 1855, included all defenses that he could make. Acts 1855, p. 57; Ind. Dig., p. 655; Elliott v. Wright, 7 Ind. 374.

George Smith, the other defendant, answered that one James S. Curtis instituted suit in the Delaware Circuit Court, on, &c., to obtain the title to the land in question; that a judgment, or decree, was rendered in his favor (see 11 Ind. 514, for the decree); that before any appeal was taken, the land was sold on his title to John Smith, who sold and conveyed to him, George Smith. To this answer, the plaintiff replied, that John Smith, the grantor to George, was present in Court when the decree in favor of Curtis was rendered; that the defendants in that case, the plaintiffs below in this, notified said John of their intention to appeal said cause, which appeal, to-wit, on, &c., was prosecuted to a reversal of the cause, (see Wilcoxson et al. v. Curtis, 11 Ind. 514,) and of the taking of the transcript for which to the Supreme Court, they gave said John notice; and that while said appeal was pending, said John, without consideration, &c., conveyed the land to his son George, now a co-defendant.

Thos. J. Sample, W. Brotherton and C. B. Smith, for the appellants. Walter March and J. Anthony, for the appellee.

There was no demurrer to this reply, and, upon the issues made by the answer of John, and the reply to the answer of George, the cause -was submitted by the defendants, jointly, to be tried by the Court; which trial resulted in a finding and judgment for the plaintiffs, against both defendants.

The whole question in the cause turned on the title of John Smith, the first purchaser. This is settled by the case of Doe v. Crocker, 2 Ind. 575. The statute of 1852, on this subject, is substantially like that of 1843. 2 R. S. 1852, p. 155; Code of 1843, p. 456. If he had not a good title he could not convey such a title. The statute, § 533, of the code of 1852, supra, provides that a reversal of a judgment, &c., shall not avoid a sale under it, to a purchaser in good faith, or the grantee of a purchaser in good faith.

John Smith is concluded by the finding on the general denial, the evidence not being in the record.

Per Curiam.

The judgment is affirmed, with costs.