Barnes v. Union School Township

• Decision Date: 07 November 1883
• Docket Number: 10,804
• Citation: 91 Ind. 301
• Parties: Barnes v. Union School Township
• Court: Indiana Supreme Court

91 Ind. 301

Barnes v. Union School Township

No. 10,804

Supreme Court of Indiana

November 7, 1883

From the Montgomery Circuit Court.

The judgment is affirmed, with costs.

T. E Ballard and M. E. Clodfelter, for appellant.

E. C Snyder and M. W. Bruner, for appellee.

OPINION

Franklin C.

Appellant sued appellee for the possession of, and to quiet the title to, a certain school lot.

Appellee answered by a general denial, and filed a counter-claim.

Appellant demurred to the counter-claim, which demurrer was overruled, and a reply was filed.

There was a trial by the court, a special finding made, and conclusions of law stated. Appellant excepted to the conclusions of law, and moved for a new trial, both of which were overruled, and judgment rendered for the appellee.

Errors have been assigned upon the foregoing rulings:

Both parties claim the real estate through one Henry Sperry; appellant claims that said Sperry in 1874 mortgaged said half-acre school lot, with other lands, to one Busenbark, who bought it at a sheriff's sale on a foreclosure of the mortgage in 1878, and in 1879 received a deed therefor; that appellant bought it from Busenbark and received a deed for it in 1880. Appellee claims to have bought the half-acre school lot from Sperry in 1853, paid the full purchase-money, took possession under the contract, and erected a valuable school house thereon, and has held possession of the same ever since, and that in 1856 said Sperry executed to appellee a title bond for a conveyance by deed to said school lot. This claim of appellee is set forth more particularly in the counter-claim. We see no reasonable objection to this counter-claim; it is a good claim for specific performance, without the execution of the bond. There was no error in overruling the demurrer to it.

The reasons for a new trial are based alone upon the sufficiency of the evidence. The evidence is not in the record. Therefore, the specification of error, based upon the overruling of the motion for a new trial, presents no question for consideration. The special findings are substantially as follows:

That in May, 1856, one Henry Sperry was the owner and in possession of the real estate in controversy; that the citizens then by donation erected a school-house thereon; that about that time, or shortly afterwards, said Sperry, having sold the same to appellee, executed to appellee a title bond for said lot, received the purchase-money therefor, and put appellee in possession thereof; that schools by subscription were taught in said house a portion of each year for several years after its erection, and that schools, either public or private, were taught in said house a portion of each year up to 1870 or 1871; that about the year 1870 or 1871, said original house was removed from said lands, and said lands remained vacant one week, when said Union School Township, by its school trustees, commenced the erection of a new school building on the site which the old one had formerly occupied, which was soon completed and occupied for school purposes by said defendant, and ever since has been, and now is, used for school purposes by said defendant, school being taught in it each year; that appellee's claim consists in said title bond, possession under it, payment of the purchase-money, and the erection of permanent improvements; that said Sperry, on the 6th day of November, 1874, executed to said Busenbark a mortgage on ten acres of land including said school-house lot; that said mortgage was foreclosed in September, 1877, and upon sheriff's...