Adams v. Vanderbeck

• Decision Date: 23 December 1896
• Docket Number: 17,740
• Citation: 45 N.E. 645,148 Ind. 92
• Parties: Adams et al. v. Vanderbeck et al
• Court: Indiana Supreme Court

45 N.E. 645

148 Ind. 92

Adams et al. v. Vanderbeck et al

No. 17,740,

Supreme Court of Indiana

December 23, 1896

Rehearing Denied May 25, 1897, Reported at: 148 Ind. 92 at 97.

From the Henry Circuit Court.

Reversed.

Clay C Hunt and M. E. Forkner, for appellants.

Brown & Brown and D. W. Chambers, for appellees.

OPINION

McCabe, J.

The appellees sued the appellants to quiet title in and to certain real estate particularly described, situate in Henry county, which appellees claim to own. The issues made by the defendants' answer of a general denial as to a part of the land, and a disclaimer as to the rest, were tried by a jury resulting in a verdict and judgment in favor of the plaintiffs, the appellees, over defendants' motion for a new trial and venire de novo.

The action of the circuit court in overruling the motion for a new trial, and for a venire de novo is called in question by the assignment of errors.

Among the reasons assigned therefor in the motion for a new trial, and now urged as cause for reversal, are that the court erred in the giving to the jury certain instructions, and refusing and modifying an instruction. There is in the transcript what purports to be a bill of exceptions purporting to incorporate the evidence into the same, but it is conceded even by the appellants, that it was not filed in time, and forms no part of the record.

There is another bill of exceptions, numbered one, embracing the instructions about which complaint is made. In this bill it is recited that the instructions were applicable to the evidence in accordance with the statute dispensing with the necessity of bringing up the evidence on appeal prosecuted upon the question of the correctness of instructions. Section 662, Burns' R. S. 1894 (650, R. S. 1881). This statute makes no change in the practice as to instructions given, but does as to those refused, because as to those given, this court, without the aid of the statute, presumes that instructions were applicable in the absence of the evidence. Drinkout v. Eagle Machine Works, 90 Ind. 423; Rozell v. City of Anderson, 91 Ind. 591; Shugart v. Miles, 125 Ind. 445, 25 N.E. 551; Kinney v. Dodge, 101 Ind. 573.

Therefore we must presume that the instructions given were applicable to the evidence.

So much of the instructions as are complained of read as follows: "But if Reed took a conveyance of the land in controversy before Hume's deed was made in discharge of or as security for a precedent debt, Reed would not be an innocent purchaser and could acquire no title as against Hume, although his deed would precede the deed to Hume;" and again, "but if Reed acquired his title in payment of a precedent debt he would not be a purchaser in good faith, and could not hold as against Hume's title; and if there was a misdescription of the land in the mortgage, and if said misdescription was perpetuated in the deed to Hume from Reeder, and in the deed from Hume to Vanderbecks, the plaintiffs, and if at a subsequent period Hume and Reeder and Reeder's wife joined in a deed made by them to Vanderbecks for the purpose of correcting said misdescription, said misdescription would not affect the plaintiffs' title, unless in the meantime an innocent purchaser had acquired a title to said land, pending said misdescription; and a deed made to Reed or any third party in payment of, or as security for a precedent debt, would not give them a standing as an innocent purchaser. In such case if you believe from the evidence that the deed from Thomas B. Reeder to Reed was in payment of or as security for the payment of a precedent debt, you should find for the plaintiff."

So far as these instructions relate to the mortgage, or security, taken to secure a precedent debt, not being sufficient to constitute the taker thereof a bona fide purchaser, they are undoubtedly correct, which appellants' counsel do not question. Busenbarke v. Ramey, 53 Ind. 499; Gilchrist v. Gough, 63 Ind. 576; Davis v. Newcomb, 72 Ind. 413; Hewitt v. Powers, 84 Ind. 295; Louthain v. Miller, 85 Ind. 161; Wert v. Naylor, 93 Ind. 431.

But, as applicable to a conveyance in payment of a precedent debt, they present a different question. We are bound to presume that there was evidence to which each one of the features of the instructions mentioned was applicable.

The question...