Allen v. Gilkison
| Decision Date | 29 June 1921 |
| Docket Number | 10,929 |
| Citation | 132 N.E. 12,76 Ind.App. 233 |
| Parties | ALLEN v. GILKISON |
| Court | Indiana Appellate Court |
From Martin Circuit Court; James W. Ogdon, Judge.
Action by Frank E. Gilkison against Lawrence L. Allen. From a judgment for plaintiff, the defendant appeals.
Reversed.
J. B Marshall and Robert L. Mellen, for appellant.
Hiram McCormick and Frank E. Gilkison, for appellee.
Action by appellee against appellant and others to quiet title to certain real estate in Martin county, Indiana. Appellant's answer consists of a general denial, and also an affirmative paragraph to which a reply in general denial was filed, after a demurrer thereto for want of facts had been overruled. The cause was submitted to the court for trial, resulting in a judgment in favor of appellee, quieting his title to the real estate in question. Appellant filed a motion for a new trial which was overruled. This action of the court is made the basis of the only error properly assigned on appeal.
Appellee contends that there is no bill of exceptions containing the evidence in the record. He bases this contention on a claim that the transcript of the evidence bound with the record is not preceded by a sufficient statement to identify it as a bill of exceptions, and that the record does not disclose that the purported bill of exceptions containing the evidence was filed in the office of the clerk of the trial court. While the statement in question is brief in form, meager in substance, and not to be commended as a model, still we may not reject it as insufficient under the liberal rule announced as to what will suffice in that regard. It is well settled that the filing of a bill of exceptions containing the evidence may be shown by the certificate of the clerk of the trial court. Howe v. White (1904), 162 Ind. 74, 69 N.E. 684; Graves v. Jenkins (1915), 58 Ind.App. 500, 108 N.E. 531. In the instant case the transcript of the evidence found in the record is followed immediately by the certificate of the trial judge sufficient in form to make the same a bill of exceptions. Immediately following this transcript and certificate is a certificate of the clerk of the trial court to the effect, that the "foregoing original long hand manuscript of the evidence," with the certificate of the judge attached, was filed in his office on August 23, 1920. While it would have been in better form to designate such manuscript and judge's certificate attached as a bill of exceptions, still they were as effectually filed as if so designated. Oster v. Broe (1902), 161 Ind. 113, 64 N.E. 918.
Appellee further contends, that even if the court should hold that the bill of exceptions in question has a sufficient introductory statement, and was properly filed, still it cannot be considered in determining any question based on the evidence, as the record shows that it does not contain all the evidence. This contention is based on a claim, that certain documentary evidence introduced on the trial is not properly made a part of the bill of exceptions. As far as it relates to the six newspapers appearing between pages 51 and 52 of the record, it suffices to say that they were never introduced in evidence, although they were identified, marked exhibits, and short extracts from each were read, and copied into the bill. Their presence therefore constitute mere surplusage, but the validity of the bill is not affected thereby. Town of Lewisville v. Batson (1902), 29 Ind.App. 21, 63 N.E. 861. Other documents were introduced in evidence, copies of which appear in the bill of exceptions immediately after a statement that they were offered and read in evidence. This, taken in connection with the certificate of the trial judge, that the bill of exceptions contains all the evidence given in the cause, discloses that appellant's contention in so far as it relates to this evidence, is not well taken. Knights Templar, etc., Co. v. Dubois (1900), 26 Ind.App. 38, 57 N.E. 943.
One of the reasons on which appellant based his motion for a new trial is, that the decision of the court is not sustained by sufficient evidence. An examination of the record discloses that appellee's title to the real estate in question rests on a tax deed, executed to him by the auditor of Martin county, Indiana, in pursuance of a sale made in 1918. On the trial of the cause, appellee introduced his deed in evidence in support of the allegations of his complaint. By the provisions of § 10380 Burns 1914, Acts 1891 p. 199, § 206, this deed constituted prima facie evidence of a good and valid title in fee simple in appellee to the real estate described therein. This being true, the burden of proving any defects in the proceedings on which it is based, that would render the deed void and thereby defeat appellee's title, rested on appellant. Bivens v. Henderson (1908), 42 Ind.App. 562, 86 N.E. 426; Knotts v. Zeigler (1914), 58 Ind.App. 503, 106 N.E. 393. Appellant, in his effort to show that he assumed and successfully maintained this burden, calls our attention to the fact that appellee's deed recites that said land was sold to him by the auditor of said county for "$ 48.24, being the amount due on the following tracts or lots of land returned delinquent in the name of Andrew W. Douglas for the nonpayment of taxes, costs and charges, for the years 1915, 1916 and 1917," while the tax sale record in evidence shows that the amount of such taxes, costs and charges, was $ 58.74. He asserts that this rendered appellee's deed invalid. In view of the fact that the tax sale record cited by appellant also shows, that said real estate was sold to appellee on the date named in said deed for $ 58.74, and that appellee paid said sum on said date to the proper officer therefor, we cannot hold that deed is rendered ineffective by the recital quoted above.
Appellant in further support of his contention that appellee's deed is not sufficient to convey title, cites the fact that while such deed describes the real estate as being in township 4 north, range 4 west, the proceedings on which said deed is based do not show whether such township is north or south, or whether such range is east or west. He insists that the addition of the words "north" and "west" in the description in the deed was unauthorized, and as the description without such unauthorized addition is insufficient, the deed must be held to be invalid. We agree with appellant that the addition of the words indicated, to the description in the deed was unauthorized. Green v. McGrew (1904), 35 Ind.App. 104, 72 N.E. 1049.
But we do not agree that the description without such words is insufficient. The record discloses that the land in question is in Martin county, Indiana. If there were no direct evidence of that fact, it might be reasonably inferred from the facts shown. Lewis v. Seibles (1887), 65 Miss. 251, 7 Am. St. 649, 3 So. 652. We must take judicial notice of the United States surveys of land in this state, and of the territorial boundaries of counties. When we do this, we know that there is only one township 4 and one range 4 in said Martin county, which makes the township and range in which the land in question is located, definite and certain. Buchanan v. Whitham (1871), 36 Ind. 257; Bannister v. Grassy, etc., Assn. (1875), 52 Ind. 178; Dawson v. James (1878), 64 Ind. 162; Burton v. Ferguson (1880), 69 Ind. 486; Wilcox v. Moudy (1882), 82 Ind. 219; Peck v. Sims (1889), 120 Ind. 345, 22 N.E. 313; Richardson v. Hedges (1898), 150 Ind. 53, 49 N.E. 822; Quinn v. Champagne (1888), 38 Minn. 322, 37 N.W. 451; Schmidt v. Powell (1919), 107 Wash. 53, 180 P. 892. We conclude that appellee's deed is not invalid for want of a sufficient description of the real estate in question.
The law governing the sale of real estate for the payment of delinquent taxes, provides that the county...
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