53 Ind. 187 | Ind. | 1876
Action by the appellee against the appellant. The facts in the complaint are the following: That in September, 1871, Micajah C. Fortner and Samuel Winings were the equal owners as tenants in common of certain real estate, which is particularly described in the complaint; that said Fortner then conveyed to the plaintiff, by warranty deed, his undivided half of said real estate; that on the 4th day of March, 1872, the defendant, without the consent of the plaintiff, took possession of the whole of said real estate, claiming to be the owner thereof by virtue of a sheriff’s deed, and continued to occupy and use the same, by himself and tenants, from that day until September 5th, 1874, and received during that time in money from said tenants the sum of two hundred and forty-eight dollars as rent for said premises, and has a claim against said tenants on account of such renting, for sixty-two dollars additional; that at the April term, 1874, of the said Henry Circuit Court, this plaintiff brought suit against said Samuel Winings and the defendant, averring in his complaint that he was the owner in fee simple of the undivided one-half of said premises, and said Winings was owner of the other half, and that the defendant, Joseph Winings, claimed to be the owner of said premises, though, in fact, he had no title thereto, and that his claim was a cloud upon the plain
The defendant demurred to the complaint on the ground
The defendant then answered, stating, in substance, that he admits the ownership of said real estate, in the complaint described, by s.aid Fortner and Samuel Winings, as therein alleged, and the conveyance by said Fortner to the plaintiff by quitclaim deed; that on the 4th day of March, 1872, the defendant received the sheriff’s deed for said real estate, as shown by the deed filed herewith and made part of this answer, and by means thereof claimed title to and ownership of said real estate, and at the time of receiving the deed rented said real estate to Granville Fortner for one year, and received therefor one hundred and twenty-five dollars; and again, on the 26th day of April, 1873, he rented said premises, still claiming title thereto and ownership thereof, to John Foster, for one year, and at the end of the year received therefor one hundred and twenty-four dollars, making in all two hundred and forty-eight dollars; of all of which renting and use by said tenants, and the reception of the rents as aforesaid by the defendant, he, said plaintiff, then and there had full notice and knowledge. He denies that Micajah C. Fortner conveyed said real estate in fee and by a warranty deed to the plaintiff, but admits a release by quitclaim deed to one-half of said real estate. He denies any use and occupation, or receiving or claiming any rent for said premises, other than as above stated, and states that at the said time, when, etc., he, said defendant, claimed title to said premises and had no notice that said plaintiff claimed the rents, or for the use of said premises, ás stated in the complaint. He also denies that any relation of landlord and tenant ever existed between said plaintiff and defendant in relation to said premises, or the use and occupation thereof, or that he received said rents for the use of the plaintiff; wherefore, etc.
A demurrer was filed to the answer by the plaintiff, on the ground that the same did not state facts sufficient to constitute a defence to the action, and the demurrer was sustained.
The errors assigned are the overruling the demurrer to the complaint and sustaining the demurrer to the answei*.
It is urged by counsel for the appellant, that the complaint is bad for the reason that there was no sufficient judgment rendered on the finding of the court in the action for partition and to quiet title, to ■ enable the plaintiff in this action to recover for the mesne profits or for use and oceupa . tion of the premises. It was not sought by the plaintiff to recover for the mesne profits or for use and occupation in the former action. He there sought to have partition as between himself and his co-tenant, and to have his title quieted as against the defendant. He now seeks to recover for the mesne profits or for use and occupation. "We see no reason why he may not do so upon the facts stated. We need not decide whether the action is to be regarded as for mesne. profits or for use and occupation.
We think there is no defence disclosed in the answer. It does not controvert the fact that the plaintiff was found to be the owner of the real estate, and his title quieted, nor that the defendant was in possession of the premises by his tenants and received the rents and profits. It was not essential that the defendant should have been in possession of the property himself. It was not necessary that the deed from Micajah C. Fortner to the plaintiff should have been a warranty deed. It was sufficient that the title was conveyed, though it was by a deed of release and quitclaim. Nor do we think the relation of landlord and tenant need to have existed between the plaintiff and the defendant, to entitle the plaintiff to recover. It is expressly enacted that “the occupant without special contract, of any lands, shall be liable for the rent, to any person entitled thereto.” 2 G. & H. 360, sec. 14.
The judgment is affirmed, with five per cent, damages and costs.