79 Ind. 328 | Ind. | 1881
— In this action, the appellee sued the appellant in a complaint of three paragraphs. The object of the suit was to obtain a judgment and decree of the court, declaring a certain quitclaim deed, described in the complaint, to be null and void, and quieting the appellee’s title to certain real estate, particularly described, in Jennings county, as against the appellant. The issues in the cause were tried by the
In this court, the appellant has assigned, as errors, the following decisions of the circuit court: -
1. In overruling his demurrer to the third paragraph of the complaint ; and,
2. In overruling his motion for a new trial.
In the third paragraph of his complaint, the appellee alleged in substance, that on the 4th day of March, 1872, he purchased of Archibald S. Welton, who was then the owner in fee thereof, and, on said day, the said Welton and his wife conveyed to appellee by deed the following described real estate in Jennings county, Indiana, to wit: Beginning in the middle of the Muscatatuck river, thirteen poles south of the line dividing the southeast quarter of section 3 and the northeast quarter of section 10, all in town 6 north, of range 8 east, and running thence west and parallel with the government line 108 poles to a corner, 13 poles south of the southwest corner of the southeast quarter of said section 3, thence north with the west line of said southeast quarter 123 poles, thence north 48-J° east 18 poles and 12 links, thence north 48° east 12 poles, thence north 24° east 3 poles, thence south 4° east 8 poles, thence south 40° east 18 poles, thence south 2° west 14 poles, thence south 46° east 16 poles, to the Muscatatuck river, thence north 74° east 22 poles, thence north 86° east 20 poles, thence south 73° east 32 poles, thence south 37° east 20 poles, thence south 24° west 70 poles, to the place of beginning, except a small tract thereof conveyed by said Welton and wife to Ellen Read and others, which conveyance was recorded in deed book 8, p. 456, of the records of the recorder’s office of said county, containing four acres, three roods and fifteen poles; that John S. Silver, then recorder of said county, acted as the scrivener of said Welton and the appellee in the drafting of said deed from said Wei-
The appellee averred, that the appellant, well knowing the premises, and that the appellee was the owner and in the possession of all of said first described tract of land, except the said small tract conveyed to said Ellen Read and others, un.■lawfully entered upon the same, without the appellee’s knowltedge or consent, and carried away therefrom, and appropriated to his own use, a large number of appellee’s rails, of the value of $10.00; that at the -term, 187 — , of the circuit •court of said county, the grand jury thereof found an indictment against the appellant for malicious trespass, in carrying from said land and appropriating appellee’s said rails, upon which indictment the appellant was duly arraigned, tried and convicted, and fined-dollars, at the-term, 187 — , of said court; that from said judgment the appellant took an •appeal to this court, and employed an attorney, and, in preparing for the defence of said suit, it was discovered that the ■land described in said deed from said Welton and wife to the •appellee did not embrace the particular land upon which said trespass was committed, and that, while the appellee had purchased from said Welton, and he and his wife had meant to ■convey to appellee, by their said deed executed on March 4th, 1872, the entire tract of land first described, yet, by reason of said mistake of said scrivener, there was a small
The appellee further alleged that the said quitclaim deed to appellant was a cloud upon appellee’s title, which ought to-be removed. Wherefore the appellee prayed that his title to the first described tract of land might be quieted, that the said deed executed by said Welton and his wife to the appellant might be declared null and void, and of no effect whatever, and that the appellant might be forever enjoined from setting up or claiming title to said land by virtue of said quitclaim deed, and for all other proper relief.
Before passing upon the sufficiency of this paragraph of complaint, it is proper that we should ■ consider and dispose of some objections urged by the appellee’s counsel to the form and substance of the appellant’s demurrer to the complaint. Omitting the title of the cause and court, and the signature of counsel, this demurrer reads as follows:
“ The defendant demurs to the first, second and third paragraphs of the complaint, each separately, for the reason that, neither paragraph of the complaint, separately considei’ed, states facts sufficient to constitute a cause of action.”
The statutory provision above quoted is, certainly, no more imperative or mandatory in its terms than the provisions of section 74 of the code of 1852, which require that every material allegation in a complaint or answer, not specifically controverted by the adverse party, shall be taken as true. Yet,
In the case at bar, we are of the opinion that the appellee is-in no condition to complain, in this court, of either the form or substance of the demurrer to. his complaint, and, if he were,, that neither of his objections to such demurrer is well taken.
We pass now to the consideration and decision of the questions presented and discussed by the appellant’s counsel in-their brief of this cause, and arising under the alleged error of the circuit court, in overruling the demurrer to the third paragraph of the appellee’s complaint. The first point made-by counsel is, that the third paragraph of complaint is bad 0» the demurrer thereto, for the want of sufficient facts, for the-reason that the quitclaim deed, therein mentioned,, from Archibald S. Welton and his wife to the appellant, was not set out in, nor filed with,, nor in any manner made a part of, said paragraph of complaint.. Counsel say: “ So far a» this paragraph seeks to- set aside the appellant’s deed, it is; founded upon it; and a copy of the- appellant’s deed should have been filed with the complaint, which has not been done. A copy of a deed to appellee is- filed with the complaint, but that will not cure the defect.”
In support of their position, that a copy of the quitclaim deed from Welton and his wife to the appellant was a necessary part of the third paragraph of the complaint, the appellant’s counsel have cited the first clause of section 78 of the civil code of 1852, providing that “ When any pleading is-
In Marot v. The Germania, etc., Association, etc., 54 Ind. 37, in delivering the opinion of the court, Biddle, J., said: “ The cloud that overhangs,’or the cause which disturbs, a title to lands, must necessarily be much better known to him who claims under it adversely, than to those who claim by a different title, and in such actions, it is peculiarly a matter of defence ; it is, therefore, unnecessary for the plaintiff to particularly state such cloud or disturbing cause, if it is shown to be adverse to his claim.” Dumont v. Dufore, 27 Ind. 263; Gillett v. Carshaw, 50 Ind. 381.
As a means to the end of quieting his title, the appellee asked that the quitclaim deed from "Welton and his wife to the appellant might be set aside and declared null and void, and of no effect. In the third paragraph of the complaint this
The appellant’s counsel next complain of the third paragraph of complaint, apparently upon the ground that the appellee did not, in his prayer for relief, ask a reformation of his own deed from Welton and his wife. This, however, is no ground for a demurrer to the complaint; and we can not see that the question is before us. It may be presumed that the appellee asked for such relief as he wanted and supposed he was entitled to. In Bennett v. Preston, 17 Ind. 291, it was field by this court that a demurrer to a complaint for the want of facts must be overruled, if, on the facts stated, the plaintiff was entitled to any relief whatever, although not to the relief demanded. Such a demurrer will not reach a defect, if any exists, in the prayer for relief. Goodall v. Mopley, 45 Ind. 355; Baker v. Armstrong, 57 Ind. 189.
Some other objections have been pointed out by the appellant’s counsel to the third paragraph of the complaint, but as the facts stated therein were certainly sufficient to constitute a cause of action in appellee’s favor, for quieting his title to the real estate in controversy, we are of the opinion that these objections were not reached by the demurrer to the paragraph, and, therefore, we do not discuss them. In such a case, objections to particular parts of a complaint can only be reached by motions to strike out, or by objecting to evidence in support thereof. Our conclusion is, that the court did not err in overruling the demurrer to the third paragraph of the complaint.
In Thompson v. Thompson, 9 Ind. 323, it was said: “The general rule 'is well settled that the declarations of a vendor, made after his conveyance, are not admissible in evidence to defeat it. Doe v. Moore, 4 Blackf. 445, and authorities there cited. It is true that the declarations of a party in possession, in derogation of his own title, may be given in evidence.” In Kieth v. Kerr, 17 Ind. 284, it was held, that declarations made by a person under whom a party claims,
The counsel on both sides of the case now before us have; elaborately discussed the' question of the sufficiency of thev evidence to sustain the finding of the trial court; but, as the judgment must be reversed and a new trial had for the error of the court in the admission of incompetent evidence, we-must decline to consider the question of the sufficiency of the' evidence. For the reasons given, the court erred in overruling the motion for a new trial.
The appellee has assigned, as a cross error, the decision of' the circuit court in sustaining the demurrer to the second! paragraph of his complaint, and in his brief his counsel! “ confidently asks, if the case is reversed, that it be reversed! on the cross error assigned by appellee.”
The appellant, however, has moved this court in writing,, to strike out such cross error, because the appellee did not file his brief thereon, within sixty days after the submission; of the cause, in compliance with Rule 3 4 of the written rules; adopted by this court on the 6th day of March, 1871. Appellee’s assignment of cross errors is entitled as of the May term, 1878, of this court, at which term the cause was submitted on call, upon his default. We are bound to presume,, that the assignment of cross error was made on or before the submission of the cause; because it could not have been, made afterwards without the leave of this court, and no such leave was asked for or granted in this case. Appellee’s brief' of this cause was not filed until June 6th, 1881,*or more than; three years after the submission of the cause and the assignment of the cross error. v
The appellant’s motion is therefore well taken, and must be-sustained; and appellee’s cross error is struck out accordingly.
The judgment is reversed, at the appellee’s costs, and the cause is remanded with instructions to sustain the motion for a new trial,and for further proceedings in accordance with this opinion.