College Corner & Richmond Gravel Road Co. v. Moss
Decision Date | 15 December 1883 |
Docket Number | 9746 |
Citation | 92 Ind. 119 |
Parties | College Corner and Richmond Gravel Road Company v. Moss et al |
Court | Indiana Supreme Court |
From the Union Circuit Court.
The judgment is reversed, at the costs of the appellee, and the cause is remanded with instructions to arrest the judgment.
B. Burk and L. H. Stanford, for appellant.
T. D Evans, for appellees.
The appellees sued the appellant to recover possession of real estate. The complaint was in four paragraphs. The first two were in the usual form of complaints in ejectment under the code; the third was for the recovery of real estate from the defendant as a tenant holding over; and the fourth was for forcible detainer.
The only question which requires examination is that of the sufficiency of the complaint on motion in arrest of judgment. It is claimed that the complaint was bad because of insufficiency of the description of the premises in each paragraph. In the first paragraph the description was as follows:
"About one-fourth of an acre of land situate in the northwest corner of section number 25, township 12, range 1 west, in Union county, Indiana, being the same parcel now in possession of defendant, and enclosed and used as a toll-gate, and garden and toll-house."
In the second paragraph the description was as follows:
"About one-fourth of an acre of land situated in the northwest corner of section number 25, township 12, range 1, west, in the county of Union, and State of Indiana, being the same now used by the defendant for toll-house and garden."
In the third paragraph it was alleged, that, on, etc., the plaintiffs, being the owners thereof in fee simple, leased to the defendant for five years, "the following described lands situated in the county of Union and State of Indiana, to wit: About one-fourth of an acre of land situated in the northwest corner of section number 25, township 12, range 1 west."
In the fourth paragraph, the description was as follows:
"About one-fourth of an acre of land situated in Union county, Indiana, in the northwest corner of section 25, township 12, range 1 west, being the same now occupied and held by defendant for toll-house and garden, under a lease for five years from," etc.
The degree of certainty in the description of real estate, which will suffice in a contract, will not always satisfy the requirements of pleading. A deed will sometimes be held void for uncertainty in the description of the premises; but, if it be possible, effect will be given to the intention of the parties. Peck v. Mallams, 10 N.Y. 509, 532; Rucker v. Steelman, 73 Ind. 396, 407. And this may be done where the intention to embrace certain definite premises in the description can be gathered from the language of the deed illustrated by known extrinsic facts agreeing with the written description, parol evidence being always admissible to explain, if possible, the calls of a deed, for the purpose of their application to the subject-matter and of thus giving effect to the deed, but not for the purpose of showing that it was intended by such description to convey a tract different from that described. Tyler Boun., 285; Coats v. Taft, 12 Wis. 388; Norwood v. Byrd, 1 Rich. 135 (42 Am. Dec. 406).
If, after applying to the words of a deed all the explanations that can be afforded by evidence as to the situation of the parties and condition of the subject-matter, it can not be ascertained by reasonable intendment that certain premises, with definite boundaries, were understood by the parties as embraced in the description employed in the deed, and what was intended by the instrument remains a matter of mere conjecture, the deed will be void. Colcord v. Alexander, 67 Ill. 581; Cilley v. Childs, 73 Me. 130.
In an action, the purpose of which is to affect the title or possession of real estate, founded upon an instrument in which there is a description of the real estate, defective but capable of aid from extrinsic facts, the complaint should give an accurate description of the property, so that its exact boundaries may be known from the description in the complaint. Slater v. Breese, 36 Mich. 77; Livingston Co. v. Morris, 71 Mo. 603; Whittelsey v. Beall, 5 Blackf. 143; Halstead v. Board, etc., 56 Ind. 363. And this is true in such actions whether based upon a written instrument or not.
"In real actions, whether petitory or possessory, a definite legal description of the property claimed should be given, so that courts may know what they are called upon to decide, and the world may know what they have decided." McManus v. Stevens, 10 La.Ann. 177.
In an action, the object of which is to procure the sale or the delivery of the possession of real estate by the sheriff, the judgment must so describe the property that the officer may deliver it, though this description may be in part based upon evidence extraneous to the instrument which is the foundation of the suit, as a deed, mortgage, or notice of a mechanic's lien, the description in which instrument may be sufficient to make it operative and yet not sufficient for a complaint based thereon. Whittelsey v. Beall, supra; Halstead v. Board, etc., supra; Munger v. Green, 20 Ind. 38; City of Crawfordsville v. Barr, 65 Ind. 367.
In ejectment under the code, if the defendant make defence, it is not necessary to prove him in possession of the premises. Section 1056, R. S. 1881.
In such case, the defendant's possession of the land described in the complaint is admitted, for the purposes of the action. It will be presumed that he concedes the description of the land to be as stated in the complaint, and evidence tending to prove boundaries is immaterial and irrelevant. Applegate v. Doe, 2 Ind. 169; Voltz v. Newbert, 17 Ind. 187; Rucker v. Steelman, supra. Therefore, when, in an action under the code to recover the possession of real property, the defendant makes defence, the description of the premises in the complaint can not be aided by the evidence; and if the complaint, because of defective description of the premises be bad on demurrer, it will be bad on motion in arrest.
It was the ancient rule in ejectment that the description of the premises must be so certain as to enable the sheriff to know exactly, without any information from the lessor of the plaintiff, of what to deliver possession. That rule was abolished in England, and it became the practice for the sheriff to deliver possession of the premises recovered according to the direction of the plaintiff, who therein acted at his own peril. Under this relaxed rule, very general and vague descriptions were used. Talbot v. Wheeler, 4 Day 448; Barclay v. Howell, 6 Pet. 498; Tyler Eject. 393, et seq. This relaxed rule in ejectment was recognized in Whittelsey v. Beall, supra, where it was said, per Sullivan, J., that in a sale of land on execution the case was different; that then the sheriff, at his own peril, must enter upon and sell the right land.
The relaxation of the rule in ejectment opened the way to many vexatious applications to correct errors of the sheriff. Taylor Land. and Ten., section 704.
The provisions of our code for the recovery of the possession of real property require that the plaintiff, in his complaint, shall particularly describe the premises. Section 1054, R. S. 1881. And our statute providing for the proceeding against a tenant holding over, and for the proceeding for forcible entry and detainer, requires that the complaint shall describe the premises with reasonable certainty. Sections 5225, 5237, R. S. 1881.
The complaint in ejectment should so describe the land that an officer, charged with the execution of the writ of possession, describing it in the same terms, will know from the writ what land it is his duty to pet the plaintiff in possession of. Livingston, etc., Co. v. Morris, supra; Harrison, etc., T. P. Co. v. Roberts, 33 Ind. 246.
In Miller v. Miller, 16 Pick. 215, it was said:
In ejectment, the judgment must follow the complaint as to the description of the property, and the writ of possession the judgment. Winstanley v. Meacham, 58 Ill. 97; Orton v. Noonan, 18 Wis. 447.
The sheriff must have process so certain on its face that, with the aid of such information as he can obtain from others as to location, boundaries, etc., he can look at the writ and say that such or such are the premises described. Orton v. Noonan, supra.
So, in the summary proceeding for forcible entry and detainer, the judgment and writ of restitution must pursue the complaint. Murphy v. Lucas, 2 Ohio 255.
In the case last cited, a complaint for forcible entry and detainer described the premises as "the lower part of a tract of land situate on the bank of the Scioto river, opposite Piketon, the same being patented to the complainant by a patent from the President of the United States, bearing date the 2d of March, 1821." This was held insufficient. It was said that the complaint must describe the premises with such certainty as will apprise the defendant of what is demanded of him, and as will afford a guide to the sheriff in executing the writ of restitution.
In Minnesota, under a statute requiring that the complaint, in a summary proceeding, should "particularly describe the premises so entered and detained,"...
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