46 Ind. App. 98 | Ind. Ct. App. | 1909
Lead Opinion
This was an action in ejectment for a small tract of low and marshy land of about three acres, lying along a ditch. It is alleged in the complaint that appellant is holding possession thereof without right, and has for three years or more unlawfully kept plaintiffs out of possession.
There are three assignments of error, but appellant contends only for the error under the third assignment, to wit: “The court erred in overruling the motion for a new trial.” Two reasons assigned in the motion for a new trial are that the verdict of the jury is not sustained by sufficient evidence and that it is contrary to law.
The land originally was owned by Davis Welborn, father of appellant, who entered it in 1836, the tract containing eighty-nine and thirty-two one-hundredths acres. In 1845, Davis Welborn conveyed the land to his son, Lewis. In 1850 said Lewis Welborn and wife reconveyed the same land to Davis Welborn. The land was located in Madison county, Indiana, and described as follows:
‘ ‘ Commencing at the southeast corner of the west half of the northwest quarter of section nineteen, township twenty-one north, range seven east, thence north thirty-seven rods, thence west nine rods, thence north nineteen rods, thence west forty-one rods, thence north to a certain branch, thence, with the meanderings of said branch, to the north line, thence west to the section corner, thence south to the half mile stake, thence east to place of beginning. ’ ’
Davis Welborn died in 1867, the owner of the land, leaving a widow, appellant Lewis Welborn, and other children as his heirs at law. A number of conveyances, by quitclaim deeds of their undivided interest, to William J. Welborn were made, and a partition proceeding among the heirs of said decedent was had in 1878. In 1879 a partition proceeding was had by William Welborn, Lewis Welborn and Eliza Johnson, who were then the owners of the entire tract, and their interests were set off to them in severalty, forty-four and
In 1886, for the purpose of squaring up their fields, Lewis Welborn made a deed to William J. Welborn for a small tract on the east line, and William J. Welborn made a deed to his brother, Lewis, for a strip along the south line of Lewis’s land. In this exchange Lewis had the deeds made, and it was done for the purpose of giving Lewis a strip along his south line, as stated, and was not intended to go to the drain. This fact was undisputed.
In 1887 Lewis Welborn conveyed to appellees the portion of land set off to him in the partition proceeding. The contents of this deed — as to the number of rods running west— are in controversy. The record made on June 3,1887, of the deed executed in January, shows the description on controverted lines “sixty-one rods west to a ditch or branch, thence north with meanderings of drain,” while the testimony of Edward Osborn, John Swift, Samuel Welborn and Frank Welborn is that the original deed, which Abraham Kimmerling had at the time the lines were fixed, read “thence west fifty rods, thence north to a ditch. ’ ’
Some two or three years after 1887 there was a fence built straight across the south end of appellant’s tract, and this included the land in controversy. Thereafter appellant cleared his fields straight with the south fence. Some time after this, appellees moved their fence on the east side of the drain, and this threw the land.in controversy in appellee ’s field. The fence continued in this place until the spring of 1902, when it was desired to rebuild the fence on the south of Kimmerling’s land, it being the east and west fence. Abraham Kimmerling and appellant had a conversation, in which Kimmerling thought Welborn, “was upon him some,” and Welborn said: “If I am, I do not want it.” Thereupon they agreed' to compare deeds,- and within a short time afterwards Kimmerling took his abstract and deeds over
Abr'aham Kimmerling returned home, talked it over with his wife, who is one of the appellees herein, and informed her that Welborn claimed “the corner down there.” Within a few days Abraham Kimmerling met Frank Welborn, and requested that he be allowed to build the fifty rods of fence east and west, and thereupon it was agreed that he should, and that appellant should build the north and south fifty rods. Appellant built his fifty 'rods of fence, which was fixed by this agreement. Each party thereupon took possession of and cultivated the land up to the new fence, and no objections or protests -were made. In thus agreeing upon the line, appellees got from appellant an additional within a few rods of the home of appellees, and Abraham hauled the old fence away from the south, where he afterwards built his fifty rods of new fence on the line so
Our attention has been called to the fact that the distance in the original deed was fifty rods west from the east line of said tract, and this is the same distance as fixed by the line in 1902 by the parties to this suit, and is the line upon which the new fence was built. The record discloses that in 1867 this very line was in question. It is claimed that appellant and his father, Davis Welborn, had a conversation with reference thereto, but nothing was done, and it continued unsettled until the parties in this ease established what they believed, from their deeds, to be the true line dividing their lands, and thereafter built their fence upon the line so agreed upon.
So in this case, where the parties met in order to determine
The verdict of the jury was not sustained by sufficient evidence, and is contrary to law. It is unnecessary for us to pass upon other reasons assigned in the motion for a new trial, as they may not occur at the retrial of this cause.
The judgment is reversed, with instructions to the trial court to sustain the motion for a new trial.
Rehearing
On Petition for, Rehearing.
Appellees, in their petition for a rehearing, complain that the court has not correctly stated the record. We have taken .the trouble to examine the record again and find it verifies the statements with reference thereto made in the opinion in this cause.
No sufficient reason being presented in the petition, why the court erred in its decision of this cause, the petition is overruled.