Beck v. Miller

• Decision Date: 17 December 1918
• Docket Number: No. 9553.,9553.
• Citation: 69 Ind.App. 1,121 N.E. 281
• Parties: BECK et al. v. MILLER.
• Court: Indiana Appellate Court

69 Ind.App. 1

121 N.E. 281

BECK et al.

v.MILLER.

No. 9553.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1918.

Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.

Suit by Ollie Miller against Leander Beck and others. From judgment for plaintiff, defendants not defaulted appeal. Reversed, with instructions to grant new trial and for other proceedings not inconsistent with the opinion.Jesse Neff, of Lebanon, and Kent & Ryan, of Frankfort, for appellants.

Ira M. Sharp and A. J. Shelby, both of Lebanon, for appellee.

HOTTEL, J.

Appellee filed in the circuit court of Boone county a complaint in one paragraph in which he alleges that “he is the owner and in possession of” a 41.72-acre tract of land located in said county and particularly described; that he “and his immediate and remote grantors have held the open, exclusive, continuous adverse possession of said real estate under a claim of ownership for more than 50 years immediately last past.” The complaint also contains the other averments and prayer usual and common in suit to quiet title.

The defendants, not defaulted, the appellants here, filed an answer in general denial. Upon the issues thus formed, there was a trial by the court and a general finding for appellee “that the material averments of this complaint are true; that he is the owner in fee simple and in possession of the following described real estate; *** that he and his immediate and remote grantors have held the open, exclusive, continuous, adverse possession of said real estate under a claim of ownership for more than 50 years immediately last past;” and that defendants are claiming title, etc. Judgment was rendered in accordance with the finding quieting appellee's title in and to said real estate.

[1] The appellants filed a separate and several motion for new trial, which was overruled. This ruling was excepted to by the appellants and is here assigned as error and relied on for reversal. The first ground of said motion challenges the sufficiency of the evidence to sustain the decision of the trial court. The evidence introduced by appellee consisted of a deed and certain papers in case No. 4030 in the Boone circuit court, entitled John Brownlee, Guardian of Daniel Abernathy, v. Ollie Miller. The deed read in evidence bears date February 20, 1907, recorded February 23, 1907, and contains recitals of conveyance in the following words:

“This indenture witnesseth: That Daniel Abernathy unmarried of Boone county, in the state of Indiana, convey and warrant, to Ollie Miller of Boone county in the state of Indiana, for the sum of eight hundred dollars, the receipt of which is hereby acknowledged, all his right, title and interest in and to the following real estate in Boone county, in the state of Indiana, to wit”-here follows a description of the land described in the complaint, finding, and judgment.

The papers read in evidence, indicated supra, consisted of a complaint in said cause No. 4030 filed May 28, 1910, in which the plaintiff as said guardian of Abernathy sought to set aside the deed made by him to said Miller upon the ground that it was fraudulently procured and to recover the rents and profits of said real estate. The summons in said proceeding, and the judgment rendered therein, were also introduced; the latter being in appellee's favor, viz., that the plaintiff guardian take nothing by his action, etc.

Upon the introduction of this evidence, appellee rested his case. It will be observed that the appellee in his complaint based his title to said land on adverse possession. The deed, supra, purports to convey only the right, title, and interest held by the grantor, Abernathy. There is nothing in the evidence, supra, to show what title he had, or that he in fact had any title; nor is there any evidence to show that such grantor was in possession of said land at the time he conveyed the same, or at any time previous thereto. Indeed, there is no evidence on the subject of possession, unless certain averments in said complaint read in evidence to the effect that Abernathy on the 20th day of February, 1907, and for many years prior thereto, was the owner of said real estate, and being so seized and possessed of said real estate and being old, infirm, and partially blind and of unsound mind, the defendant Ollie Miller fraudulently taking advantage thereof procured him to sign, etc., might be so treated. However, if said averments could be treated as any evidence of possession by appellee and...