Brown v. Brown

• Decision Date: 25 February 1893
• Docket Number: 16,095
• Citation: 33 N.E. 615,133 Ind. 479
• Parties: Brown et al. v. Brown
• Court: Indiana Supreme Court

33 N.E. 615

133 Ind. 479

Brown et al. v. Brown

No. 16,095

Supreme Court of Indiana

February 25, 1893

Original Opinion of January 25, 1893, Reported at: 133 Ind. 476.

OPINION

Hackney, J.

On petition for a rehearing, the appellants urge us to deny the authority of Wintermute v. Reese, 84 Ind. 308. We are not inclined to depart from the rule there affirmed, nor can we believe that it is not applicable to the complaint in this case. To allege an ownership in lands at a period months before the suit, is a fact which suggests ownership at the time partition is asked, but it is a fact which does not necessarily imply an ownership at the time partition is sought.

"A fact not necessarily implied, although inferable, is not sufficiently alleged, by alleging the fact which suggests it." Abbott's Trial Brief, section 51; Fowler v. New York, etc., Ins. Co., 26 N.Y. 422; Williams v. North Am. Ins. Co., 9 How. Pr. (N. Y.) 365; Magauran v. Tiffany, 62 How. Pr. (N. Y.) 251. The fact that appellants once owned does not necessarily imply a present ownership.

The petition is overruled.