Doe on Demise of Dunn v. Hearick

Decision Date02 June 1860
Citation14 Ind. 199
PartiesDoe on the Demise of Dunn and Others v. Hearick and Others
CourtIndiana Supreme Court

From the Switzerland Circuit Court.

The judgment is affirmed with costs.

J Sullivan, for appellants.

D Kelso, for appellee.

OPINION

Davison J.

Ejectment for the east half of the southeast quarter of section eleven &c., in Switzerland county. The suit was instituted November 10, 1848, by the appellants. Vienna Hearick and others, who claimed title under one James Hearick, deceased, were the defendants.

The issues were submitted to the Court, who found for the defendants, and, having refused a new trial, rendered judgment, &c.

The record contains the following agreement of facts:

On the 19th of May, 1818, one Samuel West, of Cincinnati. Ohio, entered the south-east quarter of section eleven in township two north, of range one west, in said county, containing one hundred and sixty-one acres and paid 80 dollars, one-fourth of the purchase-money. After this, he accepted the provisions of the act of congress of March, 1821, giving further credit to the purchasers of public lands. The certificate of further credit granted under the provisions of the act, was afterwards assigned by him to John H. Piatt. This assignment was made between the 29th of September, 1821, the date of the certificate, and the death of Piatt, which occurred in December, 1822; and on the 12th of April, 1825, his heirs, by his administrator, accepted the provisions of the act of congress of May, 1824, relinquished the west half of said quarter section, applied the moneys which had been paid towards payment for the land in controversy in this suit, and also advanced a further sum in final payment for the same, and on the 10th of December, 1845, a patent therefor was issued to said heirs. It is admitted that the persons suing as lessors of the plaintiff, excepting Isaac Dunn, are the surviving heirs of John H. Piatt, and, further, that Dunn holds thirty acres of said east half, lying on the west end of it which thirty acres, not being in the defendants' possession, are not in this controversy. In the year 1824, the land in suit was assessed for taxation for state and county purposes for that year, as non-resident lands. On the 8th of June, 1824, a precept was issued and delivered to the collector of said county, commanding him to collect such taxes, and on the 6th of October, the land was, by virtue of the precept, sold by him to one Abner Clarkson, who having paid the purchase-money, received a certificate of purchase, which, among other things, declared that he would be entitled to a deed on the 6th of October, 1826, unless the land should be redeemed by the owner before that time. Clarkson, on the 3d of July, 1828, assigned the certificate to Arthur Humphreys, who, on the 15th of the same month, assigned it to Samuel McIntire, who, on the 6th of September, then next following, assigned it to Stephen and Frisby Hicks. These assignments were all in due form. On the 10th of November, 1828, Henry Banta, the then collector of taxes for Switzerland county, conveyed the land by deed in fee to Stephen and Frisby Hicks, and they, on the 30th of September, 1835, conveyed to James Hearick, under whom the defendants, as his widow and heirs, claimed title. McIntire, in virtue of his assigned certificate, took possession of the land in the summer of 1828, and Stephen and Frisby Hicks were in possession of it in the fall of that year, and during the same fall built a mill thereon. They continued to occupy the land until they sold to James Hearick, when he took possession and occupied it until his death; and from the time he died, up until the trial of this cause, it has been in the possession of the defendants. It was agreed that everything not admitted, so far as regards the sale of the land for taxes, is denied.

These facts sufficiently prove that the defendants, and those under whom they claimed to have derived title, were in the continued and uninterrupted possession of the premises in contest for at least twenty years prior to the commencement of the the present suit. Was that possession adverse? The land, as has been seen, was purchased from the United States. May 16, 1818. By an act of congress of April 19, 1816, it was taxable for state and county purposes, after the expiration of five years from the day of sale. U.S. Stat. at Large, p. 290, § 5. And was, consequently, liable to be taxed in 1824. In that year it was assessed, legally taxed, and, under a precept regularly issued, sold by the proper collector, who gave the purchaser a certificate of purchase. By this sale and certificate, it seems to us that he obtained at least a colorable title.

But it is argued that everything not admitted in the agreed case is denied, so far as regards the collector's sale; that the statute required the land to be advertised, and, as the record does not show that it was advertised, that fact was not admitted. but denied; and being thus denied and not proved, it must be intended that the land was sold without advertisement, and the result is, the collector's certificate and deed are void. In answer to this, it may be said that the statute under which the collector proceeded explicitly declares that his deed to the purchaser, or his assigns, shall be conclusive evidence that the sale was regular according to the provisions of the statute. R S. 1824, p. 343. But suppose, as contended, that the deed is not conclusive, but mere prima facie evidence that the sale was regular, and that, in this instance, the collector, in the execution of the precept, had taken every step required of him by the law prescribing his duties; the defendants would, then, have the rightful title, and the statute of limitations would be inapplicable. Because to constitute an adverse possession such as will sustain the plea of the statute, a rightful title is not required. If there...

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