Adams v. Betz
| Decision Date | 04 October 1906 |
| Docket Number | 20,842 |
| Citation | 78 N.E. 649,167 Ind. 161 |
| Parties | Adams v. Betz |
| Court | Indiana Supreme Court |
From Randolph Circuit Court; J. W. Macy, Judge.
Suit by George Betz against James J. Adams. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
John W Headington, for appellant.
Fred S Caldwell, Emerson E. McGriff and James J. Morgan, for appellee.
Suit by appellee to quiet title to certain lands situated in Jay county, Indiana, described as fifteen acres off of the entire west end of the north half of the northeast quarter of section twenty, township twenty-four north, range fifteen east, more particularly described by metes and bounds. The suit was originally commenced and tried in the Jay Circuit Court, and resulted in a finding and judgment in favor of appellee. A new trial under the statute was granted to appellant, and on his motion the cause was venued to the Randolph Circuit Court.
Appellant by his answer to the complaint disclaimed any interest to a certain part of the lands described. He filed a cross-complaint, making the appellee the sole defendant thereto, wherein he alleged that on December 2, 1902, he purchased certain real estate from Joseph M. Minch at that time the owner thereof, in consideration of the sum of $ 3,000; that Minch and wife executed to him a warranty deed for the following described real estate, situated in Jay county, Indiana: The north half of the northeast quarter of section twenty, township twenty-four north, range fifteen east, except fifteen acres off of the entire west end of said tract. Appellant further alleged in his cross-complaint that at the time of said conveyance by Minch the latter was the owner of sixty-five acres of land, more or less, which land is described in the cross-complaint by metes and bounds, and it is alleged that this land is the tract which Minch intended to convey to appellant, but by reason of a mutual mistake of said grantor and grantee, and the scrivener who drafted the deed, the land was described as the north half of the northeast quarter, etc., setting out the description as hereinbefore given; that, by reason of said mistake, the deed executed by Minch and wife to appellant did not convey to him all the land which he purchased and which was intended by his said grantor to be conveyed to him. It is further averred that appellee, "for the purpose of cheating and defrauding the plaintiff of a part of his land, procured said Joseph M. Minch to make and execute to him a quitclaim deed for fifteen acres off of the entire west end of the west half of the northeast quarter of section twenty, township twenty-four north, range fifteen east, in Jay county, Indiana, which casts a cloud upon a part of plaintiff's title." The prayer of the cross-complaint is that appellant's title to the lands therein described by metes and bounds be quieted, and for all other and proper relief. Upon the issues joined there was a trial by the court and a finding in favor of appellee, and, over appellant's motion for a new trial, a decree was entered quieting appellee's title to the lands in controversy.
The only error assigned in this appeal is that the court erred in overruling the motion for a new trial. No errors raising the sufficiency of the complaint are assigned. Those discussed by appellant's counsel are that the finding of the trial court is not sustained by the evidence and is contrary thereto, and that the court erred in admitting certain evidence. Appellee's counsel insist that none of the points presented by appellant should be considered, for the reason that he has not complied with rule twenty-two of this court in the several respects mentioned, especially in his failure to set forth the evidence as required by said rule. This contention is in the main verified by an examination of appellant's brief, and were it not for the fact that counsel for appellee in their brief have, at least in part, supplied the omission of appellant we would dismiss the appeal without consideration. Appellant requests that this court, under the provisions of section eight of the act of 1903 (Acts 1903, p. 338, § 641h Burns 1905), weigh the evidence and award judgment in accordance with the weight thereof. A suit, however, to quiet title to real estate is triable by a jury ( Puterbaugh v. Puterbaugh [1892], 131 Ind. 288, 15 L. R. A. 341, 30 N.E. 519, and cases cited), consequently section eight of the statute in question does not apply to the case at bar, for by its express provision it is limited to cases not triable by a jury as a matter of right.
There is evidence in the record to establish the following facts: The eighty acres of land out of which the tract in controversy was carved was originally owned in fee simple by Jackson F. Betz. He died intestate the owner thereof, leaving appellee, his son, and five other children as his only heirs at law. After his death these children made partition of the eighty acres by executing to each other partition deeds. The part now claimed by appellee was set off to him in this partition, and, as it appears, was intended to embrace fifteen acres, excepting one acre which was held by Wabash township for school purposes, and which was subsequently, and prior to the commencement of this suit, purchased by appellee and conveyed to him by the proper township trustee. He was in possession of the premises and was residing thereon with his family at the time Joseph M. Minch became the owner of the remainder of the land through deeds of conveyance executed to him by the brothers and sisters of appellee. When Minch became the owner of the land lying east of the part occupied and claimed by appellee there was no partition fence or other dividing line between the two tracts, namely the one purchased by Minch and the one held by appellee. Thereupon Minch and appellee agreed to establish a boundary line and erect a partition fence thereon. Minch recognized that appellee owned fifteen acres of the eighty-acre tract, fourteen of which he had acquired as an heir of his father, and which had been set off to him under the partition heretofore mentioned, and the other acre which he had purchased from the township trustee as heretofore stated.
The man whom Minch selected to represent him, together with appellee, made measurements of the land and ran a division or boundary line north and south. The parties then by agreement constructed a wire fence on this agreed boundary line, which divided the lands of Minch on the east and those of appellee on the west. Minch acquiesced in this division and was fully satisfied that he had his portion of the eighty acres, and during the ten years and more in which he owned and held the lands adjacent to those of appellee he recognized and accepted the fence so erected and maintained, and acted upon by the parties, as the true dividing line, and never in any manner disputed nor called the same in question. Minch during the entire period of his ownership after the erection of this partition fence cultivated the lands on the east of this fence, and appellee likewise cultivated the land lying west thereof up to the fence. Appellant long prior to his purchase from Minch resided in the immediate vicinity of these lands, and at and before his said purchase saw this boundary or division fence and saw and knew that Minch and appellee cultivated the lands on each side thereof to said fence.
On December 2, 1902, Minch and wife, in consideration of $ 2,800, sold and conveyed to appellant by warranty deed the land situated east of this boundary or partition fence. This deed described the land as follows: "The north half of the northeast quarter of section twenty, township twenty-four north, range fifteen east, except fifteen acres off of the entire west end thereof," stating that the land therein conveyed was sixty-five acres, "more or less." It was further stipulated in this deed that the land was conveyed to appellant by Minch subject to a mortgage of $ 3,000, executed to the Dickson Lumber Company, which mortgaged indebtedness appellant in the deed assumed and agreed to pay.
During the negotiations between Minch and appellant for the sale and purchase of the land, and prior to the execution of the deed thereto, a paper containing a description of the land which Minch proposed to sell and convey to appellant was placed in the hands of the latter. The description therein contained and set out excepted from the conveyance the following real estate: "A strip or parcel of land containing fifteen acres off of the entire west end of said tract above described, now owned by George Betz." After the sale and conveyance of the land by Minch to appellant the latter discovered, through a survey which he procured to be made, that if the tract conveyed to him by Minch...
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