Deane v. Robinson
| Decision Date | 24 January 1905 |
| Docket Number | 5,081 |
| Citation | 73 N.E. 169,34 Ind.App. 468 |
| Parties | DEANE v. ROBINSON |
| Court | Indiana Appellate Court |
From Jasper Circuit Court; J. W. Oswald, Special Judge.
Action by John Deane against Alfred C. Robinson. From a judgment dismissing the cause of action on appeal from a justice of the peace, plaintiff appeals.
Affirmed.
William E. Uhl, for appellant.
J. E Wilson, J. J. Hunt and Isaac Parsons, for appellee.
A cause was pending before a justice of the peace of White county, wherein the appellant was the plaintiff and the appellee was the defendant. The complaint stated a cause of action against the appellee as tenant of certain real estate in the town of Monon, demised to him by one Horner, who had conveyed the reversion to the appellant, for the recovery of possession of the demised premises by the appellant, as the landlord, and damages for detention thereof by the appellee unlawfully holding over after notice to quit for nonpayment of rent. Before the justice of the peace the appellee filed answer, one paragraph of which was supported by the affidavit of the appellee, and thereupon the appellee moved the justice to certify the cause to the circuit court of that county without further proceeding. This motion having been overruled, the cause was tried, and the justice of the peace rendered judgment in favor of the appellant. The appellee appealed to the circuit court of that county, whence the venue was changed to the court below, where, upon the verified motion of the appellee, the cause was dismissed.
The question is presented whether the title to land was put in issue by the verified answer above mentioned, within the meaning of § 1501 Burns 1901, § 1434 R. S. 1881 which provides as follows: "If the title to land shall be put in issue by plea supported by affidavit, or shall manifestly appear from the proof on trial to be in issue, the justice shall, without further proceeding, certify the cause and papers to the circuit court of the proper county, where the same shall be tried." In this answer the appellee, in substance denied that he ever leased or rented the premises described in the complaint from Horner or the appellant, or ever held that real estate as the tenant of Horner or the appellant, or ever promised to pay Horner or the appellant rent as charged in the complaint, or in any other manner; and he denied every allegation in the complaint inconsistent with this answer. It was alleged that during the times mentioned in the complaint the appellee held possession of that real estate as owner thereof, and that it was held by Horner as trustee for the appellee; that on April 8, 1899, and prior thereto, Horner and the appellee had a large amount of business interests together; that they owned 570 acres of land in Jasper county Indiana, then held by deed in the name of Horner, for himself and as trustee for the appellee, the value of the interest of the latter in the land being about $ 7,000, which was then being offered for sale for the benefit of Horner and the appellee as their interests should appear; that Horner at the same time had a mechanic's lien for $ 1,116 against the real estate described in the complaint to secure a debt then owed by the appellee to Horner for labor and materials furnished for improvements on such real estate, the appellee then being the owner of record of this real estate, described in the complaint, subject to the mechanic's lien and other liens of about $ 2,800; that the appellee at that time entered into an agreement with Horner, whereby the mechanic's lien was foreclosed in the circuit court of White county, and other liens were paid off by Horner; that at the time when the foreclosure proceedings were commenced it was mutually understood and agreed by and between appellee and Horner that such proceedings were only for the purpose of establishing the priority of the liens and claims of Horner, and that at the sale to be made by order of the court as the result of such proceedings Horner should buy the real estate described in the complaint, and pay all liens held valid by the court, and as should be necessary to protect the title to the real estate; that April 8, 1899, and prior thereto, as a part of said agreement, it was understood and agreed that this real estate, after sale and purchase, should be held by Horner as trustee for the appellee until they could or did sell the 570 acres of land in Jasper county, and out of the share or part realized for the appellee's interest...
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