Campbell v. Hunt

• Decision Date: 06 October 1885
• Docket Number: 12,080
• Citation: 2 N.E. 363,104 Ind. 210
• Parties: Campbell et ux. v. Hunt
• Court: Indiana Supreme Court

2 N.E. 363

104 Ind. 210

Campbell et ux. v. Hunt

No. 12,080

Supreme Court of Indiana

October 6, 1885

Reported at: 104 Ind. 210 at 216.

From the Lake Circuit Court.

The judgment is affirmed, with costs.

E. D Crumpacker, A. D. Bartholomew and H. A. Gillett, for appellants.

W Johnston, for appellee.

OPINION

Niblack, J.

Charles G. Finney, being the owner of a tract of land in Porter county, in this State, on the 24th day of April, 1866, entered into partnership with one Nathaniel R. Strong in planting a vineyard and in the culture and sale of grapes, and to that end executed, in conjunction with Strong, an agreement in writing, by which he, amongst other things, leased and demised to him, the said Strong, part of such tract of land to be planted with grapes, for the term of fifty years. A few years afterwards Finney died testate, having devised the tract of land in question to his widow, Elizabeth Finney. Thereafter, on the 27th day of March, 1874, the said widow and Strong, acting seemingly upon the theory that the partnership for the culture and sale of grapes had been dissolved, mutually executed an agreement making partition of the leasehold estate in the vineyard between them. Under this agreement, about ten acres of ground was set off to Strong separately, without any limitation or restriction as to the use which might or should be made of it. On the 25th day of November, 1875, Strong sold, and by quitclaim deed conveyed, this piece of ground to Franklin W. Hunt. Elizabeth Finney, the widow, having in the meantime intermarried with one Samuel A. Campbell, took, through him, possession of the land so sold and conveyed to Hunt, in the year 1880, and has since continued in possession. Hunt, claiming to be the owner in fee simple of the land thus set off to Strong and so conveyed to him, commenced an action against Mrs. Campbell and her husband, in the Porter Circuit Court, to recover the possession of it.

Mrs. Campbell and her said husband answered, setting up the facts herein above recited in extenso, and inferentially averring that Hunt had surrendered his interest in the lease under which he held the land.

Hunt demurred to the answer, but his demurrer was overruled and, declining to plead further, final judgment was entered against him upon demurrer. Upon an appeal to this court, that judgment was affirmed. See Hunt v. Campbell, 83 Ind. 48. Hunt thereupon commenced this action in the Porter Circuit Court, against Mrs. Campbell and her said husband, to recover the possession of the same land, averring that he was the "owner and entitled to the possession for a term of years, to wit, fifty years from the 24th day of April, 1866," of the land in controversy. A trial resulted in a verdict and judgment for the defendants.

After this judgment was entered, the plaintiff moved for a new trial as a matter of right, under section 1064, R. S. 1881, tendering at the same time a satisfactory bond for the payment of all costs and damages, as required by that section of the statute, and over the objection and exception of the defendants, the judgment was set aside and a new trial granted. The venue was then changed to the Lake Circuit Court, where there was a trial by the court, a finding for the plaintiff, a denial of a new trial, and a judgment against the defendants upon the findings, from which this appeal is prosecuted.

Error is first assigned upon the decision of the Porter Circuit Court granting the plaintiff a new trial as a matter of right.

Section 1050, R. S. 1881, enacts that "Any person having a valid subsisting interest in real property and a right to the possession thereof may recover the same by action to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein."

Section 1064, herein above referred to, having reference to judgments rendered in actions prosecuted under the foregoing section, provides that "The court rendering the judgment, on application made within one year thereafter by the party against whom judgment is rendered, his heirs, assigns, or representatives, and on the applicant giving an undertaking, with surety to be approved by the court or clerk, that he will pay all costs and damages which shall be recovered against him in the action, shall vacate the judgment and grant a new trial."

The point made against the order of the Porter Circuit Court, vacating the judgment and granting a new trial, is, that the term of years, counted upon by the complaint, did not constitute "a valid subsisting interest in real property" within the meaning of section 1050, set out as above, and that hence the action was one in which the plaintiff was not entitled as a matter of right to demand a new trial. This claim is based upon the theory that a leasehold interest in land is personal property, and descends to the administrator, and not to the heir, citing Smith v. Dodds, 35 Ind. 452, and Cunningham v. Baxley, 96 Ind. 367, and that, in consequence, the action was for the recovery of personal, and not real, property.

It is true that a lessee's interest in land descends to his administrator, and not to his heirs, but it is, for that reason, none the less a valid and subsisting interest in real property. The fact that the administrator must prosecute an action for the recovery of the lessee's interest, after his death, instead of his heirs, does not change the essential character of the proceeding. It is nevertheless an action, in the nature of an action of ejectment, to recover an actual interest in real property.

An action of ejectment, when resorted to, is prosecuted upon the theory that a lessee has been disturbed in the possession of the lands in controversy, and the inevitable inference from existing statutes and decided cases is, that an action like this may be prosecuted under section 1050, supra, upon the same theory. The right to possession...