Boyer v. Robertson

• Decision Date: 02 November 1897
• Citation: 149 Ind. 74,48 N.E. 7
• Parties: BOYER v. ROBERTSON et al.
• Court: Indiana Supreme Court

149 Ind. 74

48 N.E. 7

BOYER

v.ROBERTSON et al.¹

Supreme Court of Indiana.

Nov. 2, 1897.

Appeal from circuit court, Carroll county; T. T. Palmer, Judge.

Action in ejectment by George W. Robertson and others against Isaiah Boyer. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

L. D. Boyd and E. E. Pruitt, for appellant.

HACKNEY, J.

This was an action in ejectment by the appellees, the alleged owners as tenants by entirety, against the appellant, for the possession, with damages, of lots 11 and 12 in the town of Carrollton, and a tract described as “a part of the east half of the southeast quarter of section fifteen, in township twenty-four north, of range one east, commencing twelve feet west of the northwest corner of lot number four, in the town of Carrollton, Carroll county, Indiana, due west to the west line of said lot of land, and to include all the land heretofore owned by one Henry Sulzer, as recorded in Deed Record, Book G, page 117, of the records of Carroll county, Indiana, and all that lies west of the town of Carrollton, and supposed to contain four acres, more or less, in Carroll county, Indiana.” A trial resulted in a special verdict in the form of interrogatories and answers, and a judgment in favor of the appellees, the verdict and judgment describing said four-acre tract as above described. The sufficiency of the facts found to support a judgment for any of said lands, and to support a judgment for said four-acre tract, is raised by the record and presented by the appellant's brief. For the appellees no brief or argument has been filed, but, after six months from the filing of appellant's brief, and after notice to file briefs, counsel for appellees have declined to file a brief. The fact that the case had once before been in this court (144 Ind. 604, 43 N. E. 879), with a reversal in favor of this appellant, and that this court had suggested the error in the description of the four-acre tract, seems not to have availed to secure a correction of the error, or to elicit from the appellees such attention to the case in this court as would aid us in considering the question involved.

Assuming that lot No. 4 in the town of Carrollton is an established monument from the northwest corner of which to begin the description of the four-acre tract, there is but one course given,-“due west” to the west line of “said lot of land,”-a distance somewhat in doubt, since it is uncertain whether the “lot of land” is that sought to be described or the town lot mentioned. But, conceding that the reference is to the west line of the “lot” last mentioned,-the town lot,-we have no other course or distance given. As if to describe the tract by reference, it is said “to include all the land heretofore owned by one Henry Sulzer, as recorded in Deed Record, Book G, page 117,” “and all that lies west of the town of Carrollton.” If the sheriff, in executing the...