Chapman v. Jones

Decision Date28 October 1897
Citation47 N.E. 1065,149 Ind. 434
PartiesCHAPMAN et al. v. JONES et al.
CourtIndiana Supreme Court


Appeal from circuit court, Tipton county; M. B. Lairy, Judge.

Action by Levi Jones and another against Dennis W. Chapman and others to quiet title. Judgment for plaintiffs, and defendants appeal. Reversed.

Perry Behymer and Oglebay & Oglebay, for appellants. Gifford & Coleman, for appellees.


The appellee Jones sued the appellants in a complaint in two paragraphs,-the first to set aside a sheriff's sale of certain described real estate in said Tipton county, and the second to quiet the title to the same real estate. The first trial of the issues formed resulted in a general finding for the plaintiff on the second paragraph of the complaint; the first paragraph having been withdrawn by the court after the evidence was heard, and before the finding was announced. A new trial having been granted as of right, under the statute, appellee Ezra N. Todd, on his application, was made a party plaintiff along with appellee Jones. The issues were again tried by the court, resulting in a general finding for the plaintiffs, upon which the court accordingly rendered judgment.

Error is assigned upon the action of the trial court in overruling a demurrer to each of the first and second paragraphs of the complaint, in withdrawing the first paragraph, and in overruling appellants' motion for a new trial. The action of the court in withdrawing the first paragraph could not harm the defendants, the appellants here. Such action was tantamount to the dismissal of the paragraph, and no one but the plaintiffs could complain of that. The withdrawal of the paragraph rendered the ruling on the demurrer thereto immaterial and harmless, even if erroneous. Stout v. Duncan, 87 Ind. 383.

The ruling upon the demurrer to the second paragraph was clearly wrong. As before observed, it was a complaint to quiet title to real estate. The plaintiffs in that paragraph are Levi Jones and Ezra N. Todd. It states, in substance, that Aaron Swoveland and Robert Kinney are the owners in fee simple of the land in controversy (describing it; being a lot in the city of Windfall, Ind.); that the plaintiff conveyed said land to Ezra N. Todd by a warranty deed; that said Todd has conveyed said land, by warranty deed, one-half to Aaron Swoveland, and the other half to Robert C. Kinney; that the defendants are claiming some right or interest in, to, or against said land, which they claim to be paramountto the title conveyed by this plaintiff. It thus appears that neither of the plaintiffs has any interest or title in the land whatever. It is thoroughly settled in this state that a complaint to quiet title will be bad on demurrer, for want of sufficient facts to constitute a cause of action, if the facts stated therein fail to show title in the plaintiff. Keepfer v. Force, 86 Ind. 81;Darkies v. Bellows, 94 Ind. 64;Railway Co. v. Brittingham, 98 Ind. 294;McPheeters v. Wright, 110 Ind. 519, 10 N. E. 634;Locke v. Catlett, 96 Ind. 291;Ragsdale v. Mitchell, 97 Ind. 458;Spencer v. McGonagle, 107 Ind. 410, 8 N. E. 266. It is conceded by the appellee that ordinarily a complaint to quiet title must state that the plaintiff is the owner, or state facts sufficient to show title in the plaintiff. But in this case it is contended by appellees' learned counsel that the interest of the plaintiffs, as grantors by warranty deed, first from Jones to Todd, and then from Todd to Swoveland and Kinney, affords grounds sufficient to give them a standing in court as plaintiffs; that is, the fact that they have both executed warranty deeds attempting to vest the title to the real estate in Swoveland and Kinney gives the plaintiffs a direct interest in making good their respective warranties by quieting the title of their grantees. That, however, would be in direct conflict with the above-mentioned established rule, that a complaint to quiet title, in order to be good, must show title in the plaintiff. But appellees' learned counsel contend that where an action of ejectment is brought the defendant may notify his grantor, where the grant is by warranty deed, to come in and defend the title which he has warranted, and that upon such notice, or upon his own application, he may be admitted to defend, and that on the service of such a notice, whether the grantor defends or not, the judgment, if it be in favor of the plaintiff, will be conclusive upon such grantor that such successful plaintiff's title was paramount to such grantor's title. Conceding, without deciding, that such is the law, yet it would not follow that such grantor by warranty deed could prosecute a suit against one who might seize the possession of the land granted by him to another by warranty deed, for the purpose of protecting his warranty, or for any other purpose. To permit such a suit to be...

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