Catterlin v. Douglass

• Decision Date: 03 December 1861
• Parties: Catterlin v. Douglass
• Court: Indiana Supreme Court

17 Ind. 213

Catterlin v. Douglass

Supreme Court of Indiana

December 3, 1861

APPEAL from the Clinton Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

J. E. McDonald, A. L. Roache, and Simms & Davidson, for the appellant.

N. Purdum and S. C. Wilson, for the appellee.

OPINION

Per Curiam.

Douglass sued Catterlin for entering his close and taking away a boiler, engine and mill. Catterlin answered, 1. The general denial; 2. Setting up title in himself. Reply, in denial. Trial by jury; judgment for the plaintiff. The evidence is not all in the record, nor is a special case made.

An action will lie by a mere rightful possessor, against a wrong doer, for an injury to the possessor's rights. Case v. Weber, 2 Ind. 108.

It is not shown whether the engine, &c. were so attached to the realty as to become a part of it, and in favor of the judgment we may presume that they were shown to be personal property.

A tax title is good for nothing where real estate is sold for taxes when the owner has personal property subject to sale, in the county, which is not sought for by the officer. A sheriff's deed may be given in evidence, as a link in the chain of evidence, before the judgment and execution are introduced, if the Court sees fit to permit this order of proof to be adopted; and if, on the trial, when this is done, the production of the judgment and execution are waived, it would not be error in the Court to refuse to instruct the jury that the case was not made out because the judgment and execution were not produced. Where the Court refuses instructions, and the evidence is not upon the record, the general rule is that the Supreme Court must presume their refusal correct.

The judgment is affirmed, with 1 per cent. damages and costs.