Colton v. Lewis

• Decision Date: 08 November 1893
• Docket Number: 1,135
• Citation: 35 N.E. 301,8 Ind.App. 40
• Parties: COLTON ET AL. v. LEWIS ET AL
• Court: Indiana Appellate Court

35 N.E. 301

8 Ind.App. 40

COLTON ET AL. v. LEWIS ET AL

No. 1,135

Court of Appeals of Indiana

November 8, 1893

From the Warren Circuit Court.

Judgment affirmed.

W. L Rabourn, for appellants.

J McCabe and E. F. McCabe, for appellees.

OPINION

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, seven hundred and fifty-four 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 seven hundred and fifty-four acres which appellees conveyed to appellants, begins: "Eight poles west from the northwest corner of entry No. 846, in the name of Abner Pillow, for thirty acres," and the deed to Voss, which is claimed to constitute a paramount title to one hundred and thirty-two 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 Coltons and the deeds to Voss."

There is evidence in the record tending to show that appellees were, under claim of ownership, in the possession of seven hundred and fifty-four acres of land, which they conveyed to appellants, also that by reason of the claim of ownership of said Voss, appellants did...