Bennett v. Simon

• Decision Date: 25 April 1899
• Citation: 152 Ind. 490,53 N.E. 649
• Parties: BENNETT v. SIMON.
• Court: Indiana Supreme Court

152 Ind. 490

53 N.E. 649

BENNETT

v.SIMON.

Supreme Court of Indiana.

April 25, 1899.

Appeal from circuit court, Warrick county; Edward Gough, Judge.

Proceedings between William Z. Bennett and Patrick Simon for a survey of land. The former appeals from the survey. Affirmed.

William Z. Bennett, pro se. Chas. W. Armstrong and A. R. Kiper, for appellee.

MONKS, C. J.

This was an appeal taken by appellant from a survey of real estate, under section 8030, Burns' Rev. St. 1894 (section 5955, Horner's Rev. St. 1897). The court tried the case on the last day of the December term of said court, and made a special finding of facts, and stated a conclusion of law thereon sustaining the survey, and rendered judgment accordingly. On March 7, 1898, the first day of the next term of the court below, appellant filed a motion for a new trial, which was overruled by the court. Before said motion for a new trial was overruled, appellant filed a motion for a venire de novo, which was overruled. The errors assigned call in question each conclusion of law, and the action of the court in overruling the motion for a new trial, and the motion for a venire de novo. No attempt has been made to bring the evidence into the record. As the causes assigned for a new trial depend entirely upon the evidence, no question concerning the action of the court in overruling the motion for a new trial is presented. Ayres v. Armstrong, 142 Ind. 263, 41 N. E. 522. As the motion for a venire de novo was made after the rendition of the judgment, it came too late. To present any question, such motion must precede the rendition of the judgment. Potter v. McCormack, 127 Ind. 439, 440, 26 N. E. 883;Shaw v. Bank, 60 Ind. 83, 94.

It appears from the special finding that both parties trace their title to the same source, Samuel P. Hinman, who died testate in 1884, the owner of a tract of land. By his will he devised to his wife a life estate in all his real estate, “consisting of one hundred acres where I now live.” The fee simple of said real estate he devised, 40 acres to his son Jacob, his son Jonas 20 acres, and his daughters, Lora, Harriet, and Ollie, 13 1/3 acres each, making 40 acres for the daughters; Jacob's portion to be taken from the west side of said real estate. Jacob Hinman took immediate possession of what he supposed was devised to him, bounded on the west and south by highways, and on the east by the lands devised to Jonas, Lora, Harriet, and Ollie. He built a fence along the east line of the north half of said real estate, about, if not exactly, 64 rods from the west line of said tract, the south part of the east line remaining unfenced. Afterwards, in 1887, Jacob Hinman sold and conveyed the tract of land devised to him to appellee, who took possession thereof. Afterwards, a fence was built, commencing at the south end of the fence built by Jacob Hinman, and bearing gradually to the west, until at the south line the same lacked 43 links of being 64 rods east of the west line of said tract. It is not shown who built this fence. The 20 acres devised to Jonas were conveyed to him so that the part for the daughters abutted the tract devised to Jacob Hinman on the east, and extended the same distance north and south, to wit, 25 34/100 chains. The daughters named sold and conveyed said tract of land to appellant. In 1872, before the death of Samuel P. Hinman, he sold and conveyed one-half acre in the part of said 100 acres afterwards conveyed to appellee to a church corporation, “to be used as a building spot and site for a church edifice, and, when it...