Chicago, I.&E. Ry. Co. v. Linn

• Decision Date: 25 November 1902
• Citation: 30 Ind.App. 88,65 N.E. 552
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & E. RY. CO. v. LINN.

30 Ind.App. 88

65 N.E. 552

CHICAGO, I. & E. RY. CO.

v.LINN.

Appellate Court of Indiana.

Nov. 25, 1902.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Action by Frank Linn against the Chicago, Indiana & Eastern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Steele, Lett & Steele and Mitchell & McClintic, for appellant S. L. Strickler, Grant A. Dentler, and Lawrence & Roads, for appellee.

HENLEY, J.

This cause originated in the Grant circuit court, where there was a trial, and verdict in favor of appellee. Appellant's motion for a new trial was sustained by the Grant circuit court. On the affidavit and motion of appellant the venue was changed to the Miami circuit court, where there was a trial, and verdict and judgment in favor of appellee in the sum of $1,200.

Appellee's action was to recover damages for the unlawful appropriation of his real estate by the appellant. The complaint was in two paragraphs, the sufficiency of which is not questioned. Appellant answered by general denial. This completed the issues.

The facts out of which this controversy arose are as follows: The Xenia Real Estate Company was the owner of the parcels of land in controversy, and by warranty deed conveyed the same to Harry J. Smith and Frank Linn. Smith & Linn were engaged in the manufacture of buggies. They became financially embarrassed, and made a general assignment of all their property, both real and personal, to one William Baldwin. This assignment included the parcels of land conveyed to them by the Xenia Real Estate Company, and known as lots 1 and 2 in Park addition to the town of Xenia, now Converse, in Grant county, Ind. The said Baldwin, as assignee of the firm of Smith & Linn, by order of the court sold said lots 1 and 2 to one Edward Tucker, and which sale was approved by the court, and the deed of conveyance to the aforesaid real estate was executed to the said Tucker on the 9th day of February, 1895. The said Tucker and wife conveyed the said lots by quitclaim deed to the appellee, Frank Linn. It is by these several deeds of conveyance that the appellee claims title to the real estate appropriated by appellant. Appellant bases its right to said real estate on a deed made on the 10th day of March, 1807, by Edward Tucker and wife to Richard M. Crouch and wife, who on the 10th day of October, 1899, conveyed said lots to appellant by quitclaim deed. The deed made by Tucker and wife to appellee on the 9th day of February, 1395, was not recorded in the recorder's office of Grant county, Ind., until some time during the fall of 1899, and more than two years after the execution of the deed of Tucker and wife to Crouch and wife. It is shown by uncontradicted evidence that the deed from Tucker and wife to Crouch and wife was signed by the grantors under a written agreement that the same should be placed in escrow, and should not be delivered to the grantees until the performance of certain conditions named in said written contract. It was one of the disputed questions of fact as to whether or not these conditions were performed; appellant contending that the conditions had been performed, and appellee contending that the grantees in said deed procured the same without the consent of the grantors or of the party holding the same, and without the performance of any of the conditions upon which the delivery depended.

The general verdict of the jury necessarily found that all the material allegations of appellee's complaint were true, and necessarily found, as a part thereof, that appellee was the owner of the real estate appropriated by appellant. With the general verdict the jury found facts specially by way of answers to interrogatories, which facts were, in substance, as follows: That appellee had possession of the real estate in controversy at the time the appellant entered thereon; that the Xenia Real Estate Company conveyed by warranty deed the title to said real estate to Harry S. Smith and Frank Linn in January, 1892; that the said Smith & Linn, by deed of assignment, conveyed the title to the said real estate to William Baldwin, trustee, on September 13, 1892; that Baldwin, as trustee, and by order of the Grant circuit court, conveyed the title to said lots to Edward W. Tucker March 6, 1893, and that the said Tucker and wife conveyed the title to said lots by deed to appellee on the 9th day of February, 1895, and that the appellee was the owner of the fee-simple title to said lots at the time of the commencement of this action; and that appellant knew of appellee's title to said lots before its entry thereon. The jury further found that the deed from Tucker and wife to Crouch and wife was placed in escrow with Samuel L. Strickler, and that the possession of said deed was procured by the said Richard. M. Crouch from said Strickler without the knowledge or consent of the said Edwin Tucker, and that the said Richard M. Crouch did not comply with the conditions under which said deed was placed in escrow; that the appellant entered upon and appropriated the said lots for railroad purposes without the authority or consent of appellee, and without...