98 Ind. 31 | Ind. | 1884
Suit by the appellee against the appellants to quiet title to real estate. The complaint was in two paragraphs, to each of which appellants unsuccessfully demurred. They then answered by the general denial. Appellant Sarah Souders also filed a cross complaint, claiming to bo the owner and entitled to the possession of the same real estate, averring that appellee was in the unlawful possession of it, and asking judgment for possession and damages. Appellee answered the cross complaint by the general denial. There was a trial by the court, and a finding for appellants upon appellee’s complaint, and for the appellee upon the cross complaint, the effect of the finding being that none of the parties had any title. ' Appellant Sarah Souders moved for a new trial, assigning as causes that the finding -was not sustained by sufficient evidence, and was contrary to law. Her motion was overruled, and judgment was rendered in accordance with the finding.
As the court found and gave judgment against the appellee upon his complaint, the error, if any, of overruling the appellants’ demurrer thereto was rendered harmless. The overruling of a demurrer to an insufficient pleading is unavailable as error where the finding or verdict is against the truth of the facts alleged in such pleading. State, etc., v. Julian, 93 Ind. 292.
Appellants Oscar and Sarah Souders, who were husband and wife, conveyed the real estate, June 20th, 1872, to Peter Wehner, who, on the same day, reconveyed it to said Sarah. The deeds mentioned were duly recorded. As Sarah traced her title back through a warranty deed from one in possession, the evidence standing alone was sufficient to authorize a recovery in her favor upon her cross complaint. A warranty Heed from one in possession of real estate conveyed gives the the grantee, prima facie, a good title. Sheets v. Dufour, 5 Blackf. 549; Pierson v. Doe, 2 Ind. 123; Applegate v. Doe, 2 Ind. 169; Voltz v. Newbert, 17 Ind. 187; Huddleston v. Ingels, 47 Ind. 498; Brandenburg v. Seigfried, 75 Ind. 568.
It was attempted to be shown that Sarah’s title was divested by a mortgage executed by her and her husband May 14th, 1872, to Alexander M. Murphy. This mortgage was foreclosed in December, 1872. The real estate described in it was sold under the foreclosure at sheriff’s sale, on January 31st, 1873, to D. J. Hodges and I. Mill Rodgers, to whom a sheriff’s deed was executed on February 4th, 1874. At the time of the commencement of his action, and when the cross complaint was filed, the appellee was in possession of the real estate described in said cross complaint. It is inferable that his possession was under claim of title by conveyances from Hodges and Rodgers.
It must be conceded that if the real estate described in the cross complaint is embraced in that described in the mortgage, the finding and judgment of the court, so far as the appellant Sarah Souders is concerned, were correct, for in that case her title to the real estate now in controversy was ex
Oscar Souders testified : “lam the husband of Sarah Souders, and am the Oscar Souders mentioned in the deed of John ”W. Shelton; he was in possession of that part of Seminary Lot'12 that he deeded to me at the time he made the deed to me; Seminary lots are on the south part of town, down by the college, and in Perry township; out-lot 12 is north and west of Bloomington, and in Bloomington township; they are not within a half mile of each other; it was Seminary Lot 12 that I owned, and-1 never owned any of the out-lots.”
From this evidence, and the dissimilarity of the descrip
Reversed, at appellee’s costs, with instructions to sustain the motion for a new trial.