Barrett v. Johnson

Citation2 Ind.App. 25,27 N.E. 983
PartiesBarrett et al. v. Johnson.
Decision Date09 June 1891
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Posey county; R. D. Richardson, Judge.

J. Kilroy and W. S. Jackson, for appellants. D. O. Barker and G. V Menzies, for appellee.

Crumpacker, J.

This action was commenced by Johnson against Barrett and Varner to recover the possession of a parcel of real estate in Posey county under a written lease. The complaint alleges that one William Price was the owner of the property, and on the 5th day of April, 1889, he executed a written lease to one J. R. Bryon, whereby he demised the premises to him for a term of five years from the 16th day of May, 1889; that said lease was duly executed and recorded; and said Bryon, by an instrument in writing, sold, assigned, and transferred said leasehold to the plaintiff for a valuable consideration, and he was entitled to the possession of the premises; but the defendants unlawfully and without right withheld the same from him. An answer in general denial was filed, and the cause was tried by the court, and resulted in a finding and judgment for the plaintiff for possession and damages. A motion for a new trial was filed by the defendants, which was overruled, and they excepted, and they now prosecute this appeal, assigning as error, for the reversal of the judgment, (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) error in overruling the motion for a new trial. The only objection to the complaint, made by counsel for appellants, is that no copy of the lease was filed with it as an exhibit. This was not necessary. A written instrument, which is not the foundation of an action, but is only evidence of the title asserted, need not be set out with the complaint. Muniments of title do not constitute the foundation of an action for the recovery of real estate within the meaning of section 362 of the Code, and it would be improper to file the originals or copies with a complaint in such cases. Rausch v. Trustees, 107 Ind. 4, 8 N. E. Rep. 25; Whipple v. Shewalter, 91 Ind. 114;Boyd v. Olvey, 82 Ind. 294;Ragsdale v. Parrish, 74 Ind. 191. There is no more reason for requiring a copy of the lease to be filed with the complaint in this case than there would be to require an owner in an action to recover the possession of his real estate to file with his complaint copies of all of the deeds and instruments forming his chain of title. Besides, in actions founded upon written instruments within the meaning of the statute, a failure to file the proper exhibits with the complaint must be taken advantage of in the trial court to be made available on appeal; otherwise the omission will be cured by the verdict. School Tp. v. Hay, 107 Ind. 351, 8 N. E. Rep. 220. The complaint is sufficient.

The other assignment presents but a single question, viz., the adequacy of the evidence to support the finding. It was admitted at the trial that Price was the owner of the real estate in controversy, and on the 5th day of April, 1889, he gave Bryon a written lease therefor for five years from the 16th day of May, 1889, which lease was duly executed and recorded, and subsequently Bryon sold and transferred the leasehold by a written instrument of assignment to the appellee, who demanded possession before the commencement of the action. It was also established by the evidence that on the 15th day of May, 1888, Price executed a written instrument in the form of a title-bond to said Bryon and one J. B. Covington, whereby he undertook to convey the real estate in dispute to them upon certain conditions. This instrument was modified at the time of its execution by an indorsement written upon it, and is as follows: “Title Bond. Know all men by these presents, that I, William Price, am held and bound unto J. B. Covington and J. B. Bryon in the sum of two hundred and fifty dollars. The condition of this obligation is such that, whereas, I have this day sold to said Covington and Bryon the following real estate: Lot number one, (1,) in Price's first addition to Price's station, in the county of Posey and state of...

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3 cases
  • Couch v. Welsh
    • United States
    • Supreme Court of Utah
    • 13 Noviembre 1901
    ......1304Supreme Court of UtahNovember 13, 1901 . Appeal. from the Seventh District Court, Grand County.--Hon. Jacob. Johnson, Judge. . . Action. to recover damages for the removal, by the re-respondents, of. certain improvements from certain mining claims. . ... landlord and tenant. Clifford v. Gressinger, 96 Ga. 789; Hartwell v. Black, 48 Ill. 301; Barrett v. Johnson, 2 Ind.App. 25; Nobles v. McCarty, 61. Miss. 456; Crinkley v. Egerton, 113 N.C. 444; 18 Am. and Eng. Ency. of Law (2 Ed.), 169. . . ......
  • Diggs v. Way
    • United States
    • Court of Appeals of Indiana
    • 14 Octubre 1898
    ......Treadway v. Cobb, 18 Ind. 36;Rausch v. Trustees, 107 Ind. 1, 8 N. E. 25;Barrett v. Johnson, 2 Ind. App. 25, 27 N. E. 983. In Ross v. Menefee, 125 Ind. 432, 25 N. E. 545, it was held that a complaint for the wrongful conversion of ......
  • Diggs v. Way
    • United States
    • Court of Appeals of Indiana
    • 14 Octubre 1898
    ...... action be not founded on the instrument. Treadway v. Cobb, 18 Ind. 36; Rausch v. Trustees,. etc., 107 Ind. 1, 8 N.E. 25; Barrett v. Johnson, 2 Ind.App. 25, 27 N.E. 983. In. Ross v. Menefee, 125 Ind. 432, 25 N.E. 545,. it was held that a complaint for the wrongful conversion ......

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