Calton v. Lewis

• Decision Date: 08 November 1893
• Citation: 35 N.E. 301,8 Ind.App. 40
• Parties: CALTON et al. v. LEWIS et al.
• Court: Indiana Appellate Court

8 Ind.App. 40

35 N.E. 301

CALTON et al.

v.LEWIS et al.

Appellate Court of Indiana.

Nov. 8, 1893.

Appeal from circuit court, Warren county; J. M. Rabb, Judge.

Action by Henry T. Calton and others against Samuel R. Lewis and others to recover damages for alleged breach of a covenant of warranty in a deed. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

W. L. Rabourn, for appellants. McCabe & McCabe, for appellees.

DAVIS, J.

This suit was brought by the appellants, who alleged in their complaint that on the 13th day of March, 1884, appellees, Lewis and wife, conveyed to them by a deed containing covenants of general warranty 754 acres of land in Lawrence county, in the state of Tennessee; that the covenant of seisin was broken in this: that at the time the deed was executed one Voss was in the adverse possession of a part of the tract so conveyed, holding the same by title paramount to that of the grantors; that the appellants had never obtained possession of the premises so adversely held; and that they had thereby sustained damages, for which they prayed judgment. The record does not disclose that any answer was ever filed. The cause was submitted to a jury for trial, and a special verdict returned, on which judgment was rendered in favor of appellees. The only error assigned is that the court erred in overruling appellants' motion for a new trial. The only reasons discussed are that the verdict is contrary to law, contrary to the evidence, not sustained by sufficient evidence, and that it fails to find all the facts proven by the evidence. The evidence is in some respects conflicting, and in others it is indefinite and uncertain. For instance, as we understand it, the description of the 754 acres which appellees conveyed to appellants begins “8 poles west from the northwest corner of entry No. 846, in the name of Abner Pillow, for 30 acres;” and the deed to Voss, which is claimed to constitute a paramount title to 132 acres in the northwest corner of said first-mentioned tract, has the following beginning: “A part of entry No. 786, in the name of Thomas M. Scott, for 612 acres, granted to said Scott and bounded as follows, to wit: Beginning at the southwest corner of said entry No. 786; thence,” etc. It is earnestly insisted by counsel for appellees that there is no “evidence in the record that tends even remotely to establish the identity of the parcels described in appellees' deed to the Caltons and the deeds...