Brown v. Cox

• Citation: 63 N.E. 568,158 Ind. 364
• Parties: BROWN v. COX.
• Decision Date: 11 April 1902
• Court: Supreme Court of Indiana

158 Ind. 364

63 N.E. 568

BROWN

v.COX.

Supreme Court of Indiana.

April 11, 1902.

Appeal from circuit court, Montgomery county; Jere West, Judge.

Suit by William Cox against Catherine V. Brown. From a decree for plaintiff, defendant appeals. Affirmed.

Ira M. Sharp and B. F. Ratcliff, for appellant. P. H. Dutch, for appellee.

HADLEY, J.

Transferred from the appellate court, under the provision of the act of March 13, 1901 (Acts 1901, p. 590; section 1337u, Burns' Rev. St. 1901). Suit by appellee for possession and to quiet title. Complaint in two paragraphs, each of which was sustained on demurrer. Answer in general denial, and a cross complaint to quiet title in the defendant. Answer of former adjudication to the cross complaint. Trial by the court, and finding and judgment for appellee. The assignment challenges the action of the court in overruling the demurrer to the second paragraph of the complaint and in overruling the motion for a new trial.

1. The second paragraph of complaint is to quiet the plaintiff's title. In this paragraph it is averred “that the plaintiff is the owner in fee simple and entitled to the possession of the described real estate; that the defendant is claiming title to said real estate, and a right to the possession thereof, which claim is without right, and unfounded, and casts a cloud upon the plaintiff's title.” The statute relating to the subject (section 1082, Burns' Rev. St. 1901) provides that an action may be brought by any person having an interest in real estate against another who claims title to or an interest in the property adverse to the plaintiff. It is contended that this complaint is bad because it does not aver that the title claimed by the defendant is adverse to the title claimed by the plaintiff. It must be conceded that the complaint is carelessly drawn, yet under the liberal construction we are required to give the statute (Johnson v. Taylor, 106 Ind. 89, 91, 5 N. E. 732) we think it sufficient to withstand a demurrer. It is not essential to a complaint to quiet title that the language of the statute shall be employed. It is enough if the facts pleaded clearly show that the claim asserted by the defendant is adverse to the claim of the plaintiff. Johnson v. Taylor, 106 Ind. 89, 5 N. E. 732;Coal Co. v. Streitlemier, 139 Ind. 83, 37 N. E. 340. Here the plaintiff alleges that he is the owner in fee, and entitled to the possession, and that the defendant's claim of title is unfounded, and without right. If this is true, it follows that the title and right of possession claimed by the defendant is necessarily adverse.

2. It appears that upon the trial, as against the answer of former adjudication, appellant's witness had testified that he was one of her attorneys in the trial of said former suit, and was present and heard the trial judge announce his decision of the case, from which point the record proceeds as follows: “‘You may state to the court what judge Terhune, in disposing of the case, said in reference to the point decided in it?’ To which question the plaintiff objected, and the court sustained the objection, to which ruling of the court the defendant at the time excepted.” After this ruling and exception there followed an offer to prove, a refusal of the offer, and an exception by appellant. It has been many times decided that this sort of procedure presents no question, for reasons stated in the following cases: Deal v. State, 140 Ind. 354, 371, 39 N. E. 930;Gunder v. Tibbits, 153 Ind. 591, 55 N. E. 762, and cases cited; Wilson v. Carrico, 155 Ind. 570, 58 N. E. 847, and cases cited; Miller v. Coulter, 156 Ind. 290, 59 N. E. 853;Railway Co. v. Machler (at this term) 63 N. E. 210.

3. It...