Bailey v. Briant
| Decision Date | 20 February 1889 |
| Docket Number | 13,563 |
| Citation | 20 N.E. 278,117 Ind. 362 |
| Parties | Bailey et al. v. Briant |
| Court | Indiana Supreme Court |
From the Huntington Circuit Court.
Judgment reversed, at the costs of the appellee, with instructions to grant a new trial, and for further proceedings not inconsistent with this opinion.
J. C Branyan, M. L. Spencer, R. A. Kaufman and W. A. Branyan, for appellants.
B. F Ibach and J. G. Ibach, for appellee.
On the 3d day of January, 1883, the appellee conveyed to the appellants, by warranty deed, lots fifty-five and fifty-six in Louis Heitzfield's addition to the city of Huntington, Huntington county, Indiana.
At that time a proceeding was pending by the city of Huntington to condemn a portion of said lots for the purpose of widening Franklin street. Such proceedings were had as that, on the 24th day of September, 1883, sixteen feet off the north end of said lots was condemned and taken for street purposes, and $ 120 damages were awarded to the owners of the lots by reason of such condemnation. The money was paid over by the city treasurer to the appellee, and this suit is prosecuted by the appellants to recover the same.
On the trial of the cause the appellee testified in his own behalf. His counsel propounded to him the following question:
"State what agreement or conversation, if any, there was between you and the plaintiffs as to any amount of damages which might be assessed upon the widening of the street on which these lots abut--as to who should receive the same?"
To this question the appellants objected, and stated to the court, as the reasons for such objection, that such agreement, if made, was merged in the deed; that the defendant could not reserve the land itself by parol, and that this was an attempt to contradict the deed. The court overruled the objection, and the appellants excepted.
The appellee then testified, in substance, that, while talking with appellants about the purchase and sale of the lots, he stated that the street was about being widened, and if it were, it would take ten or fifteen feet of the lots; that he (witness) had lots on the other side of the street, and if the appellants wanted any damages he would not sell.
The appellants assigned this ruling of the court as a reason for a new trial, and now assign in this court as error the action of the circuit court in overruling their motion for a new trial.
There is a class of cases in which it is held that a parol reservation may be made, but they all relate to growing crops and trade fixtures, or such other articles as are not permanently attached to the land. Heavilon v. Heavilon, 29 Ind. 509; Harvey v. Million, 67 Ind. 90.
But the rule is never extended to such things as pertain to and form or constitute a permanent part of the realty. Armstrong v. Lawson, 73 Ind. 498.
At the date of the deed executed by the appellee to the...
To continue reading
Request your trial