Columbus, Hope And Greensburg Railway Company v. Braden

• Decision Date: 20 April 1887
• Docket Number: 12,446
• Citation: 11 N.E. 357,110 Ind. 558
• Parties: The Columbus, Hope and Greensburg Railway Company v. Braden
• Court: Indiana Supreme Court

11 N.E. 357

110 Ind. 558

The Columbus, Hope and Greensburg Railway Company v. Braden

No. 12,446

Supreme Court of Indiana

April 20, 1887

Petition For a Rehearing Overruled June 28, 1887.

From the Decatur Circuit Court.

Judgment reversed.

J. K Ewing and C. Ewing, for appellant.

J. D Miller and F. E. Gavin, for appellee.

OPINION

Elliott, C. J.

The appellee's complaint is for the recovery of real estate. The appellant answered the general denial and also pleaded several affirmative answers, but these were struck out on the motion of the appellee.

There was no error in striking out the affirmative answers, for they were all embraced by the general denial. No right was taken from the appellant by striking out these answers, as all the evidence that was competent under the affirmative answers was admissible under the paragraph in denial.

The appellee executed a deed conveying to the Cincinnati and Terre Haute Railway Company a right of way, in consideration, as the deed recites, "of the location and construction of the Cincinnati and Terre Haute Railway." This company did not construct the road, but a mortgage executed by it was foreclosed, and all its rights and property sold upon the decree. Under this sale the appellant claims title, and the road has been constructed by it.

It appears that the title through which appellant claims was, on the face of the deed, in M. E. Ingalls, and the appellant offered to prove that he held it in trust for its benefit. There was no error in excluding this evidence, for the offer was not to prove facts from which the law would imply a trust, but to prove by oral statements the existence of an express trust, and this, it is well settled, can not be done. Express trusts can not be established by parol.

There was no available error in refusing to permit the appellant to ask the appellee when on the witness stand, if he had not "deeded the land" to the Cincinnati and Terre Haute Railway Company, for the deed was in evidence, and all was proved by it that it was possible for the appellant to legally prove. If there was any error at all, it was a harmless one, and we need not decide whether the question was, or was not, a proper one.

It is assumed by appellee's counsel that this case is governed by the decision in Ingalls v. Byers, 94 Ind. 134, but we can not concur in this view. In that case the claim was not, as here, under the deed, but under condemnation proceedings, and the controversy was solely as to who should receive the money paid into court under those proceedings; while here the claim is founded on the deed, and is to the real estate itself. In the case referred to we said: "If the appellant were claiming as the successor of the Cincinnati and Terre Haute company and was proposing to build the road for which the easement was granted, we should have a very different question and one upon which the cases of Junction R. R. Co. v. Ruggles, 7 Ohio St. 1, and Paul v. Connersville, etc., R. R. Co., 51 Ind. 527, would have an important bearing, but he makes no claim of that kind." It will be seen, therefore, that the clear implication from the language employed in Ingalls v. Byers, supra, is against the appellee rather than in his favor.

The deed of the appellee undoubtedly conveyed an easement in the land to the Terre Haute and Cincinnati Railway Company, and this easement was...