Bell v. Longworth

• Citation: 6 Ind. 273
• Parties: Bell and Another v. Longworth and Another
• Decision Date: 31 May 1855
• Court: Supreme Court of Indiana

6 Ind. 273

Bell and Another v. Longworth and Another

Supreme Court of Indiana

May 31, 1855

From the Vanderburgh Circuit Court.

The judgment is affirmed with costs.

J. G Jones and J. E. Blythe, for appellants.

C Baker, for appellees.

OPINION

Perkins J.

Longworth and Miles commenced an action of forcible entry and detainer against Bell and Kiger, before two justices of the peace, charging them with forcibly and unlawfully taking and detaining the possession of the south-west quarter of section twenty, in township six south, of range ten west, in the Vincennes land district. An appeal transferred the cause to the Circuit Court, where there was a jury trial upon the general issue, verdict for the plaintiffs, and, after the usual motions to prevent, a judgment for restitution, &c., on the verdict.

It appears that the land in question was purchased of the United States by Harrison and Beaman, in 1817, at the price of 2 dollars per acre, they paying down one-fourth of the purchase-money, and receiving, as then allowed by law, a credit for the remaining three-fourths; that in 1820 Harrison and Beaman assigned their interest in said purchase to Paxon and Pearson, merchants doing business in Cincinnati, Ohio, though Paxon resided elsewhere; that said Paxon and Pearson failed in business, being, at the time, indebted to Nicholas Longworth, of Cincinnati, in a sum exceeding 3,000 dollars; and that, to pay said indebtedness, or a part thereof, Pearson, the acting partner, residing in Cincinnati, sold the interest of said firm in the land in question to said Longworth, and, to convey it, executed to him the following instrument:

"For value received, we hereby assign to Nicholas Longworth, of Cincinnati, all our right and claim to the south-west quarter of section twenty, township six south, range ten west, in the district of Vincennes, as witness our hands this 22d day of September, 1821. Charles Paxon and Elijah Pearson, by the acting partner, E. Pearson. Signed and acknowledged in the presence of Peyton S. Symmes, register land-office, Cincinnati."

The quarter-section was, at this date, an unenclosed, unbroken forest.

It further appears that in 1822 Longworth appointed an agent to take charge of his purchase, and has since continued the agency uninterrupted; that the agent has resided near or upon the land, which is situate adjoining Evansville, in this state; that, in the language of one of the witnesses, "the whole quarter-section was included in his agency; he cut timber over it, prevented others from cutting, warned people off of it, and employed other persons to watch trespassers and keep them off." He paid the taxes upon the quarter, leased portions of it to different individuals, by whom some clearing and fencing were done; but the whole tract was never enclosed; though the oldest inhabitants of the vicinity say it had always been called and known amongst them as Longworth's quarter. It also appears that in 1825 payment was made to the United States of the purchase-money then unpaid upon the quarter; but there not being forwarded to the land office an assignment of the certificate given to Harrison and Beaman, the original purchasers, and by them assigned to Paxon and Pearson, the receipt and patent issued nominally to the persons last named. The record shows, likewise, a conveyance by Longworth of the undivided half of said quarter to Miles. Such is the evidence of title respectively in those two persons.

As to the entry upon and detainer of the land by Bell and Kiger, there was evidence tending to prove that they knew it belonged to, or was claimed by, Longworth; that it was in charge of his agent, and patches of it in possession of his tenants; and that, with this knowledge, in January, 1852, they entered upon a portion of the cultivated part of the section, commenced fencing it, working night and day, surrounded by a force, some of it armed, sufficient to repel any persons that might interfere with them; and which, by threats and hostility of attitude, did repel the agents of Longworth from their attempts to remove the fence.

Bell and Kiger claimed the right to enter upon the land by virtue of deeds from some of the heirs of Paxon, executed to them in 1851. Such are the principal facts of the case, and upon them two material questions arise:

1. Were Longworth and Miles in possession, under a claim of title, of the land entered upon by Bell and Kiger?

2. If so, were the entry and detainer, or either of them, of the latter forcible?

Longworth and Miles were undoubtedly in possession of some portion of the quarter-section upon which Bell and Kiger made entry; were they of all?

In the second...