Doe v. Brown

• Decision Date: 28 May 1853
• Citation: 4 Ind. 143
• Parties: Doe on the demise of Harlan and Others v. Brown
• Court: Indiana Supreme Court

4 Ind. 143

Doe on the demise of Harlan and Others v. Brown

Supreme Court of Indiana

May 28, 1853

ERROR to the Fayette Circuit Court.

The judgment is reversed with costs. Cause remanded.

J. A Fay and J. S. Newman, for the plaintiff.

J Rariden, for the defendant.

OPINION

Roache J.

Ejectment by the heirs of Joshua Harlan, for a lot in the town of Connersville. Verdict and judgment for the defendant. Motion for a new trial overruled. The evidence is all set out in a bill of exceptions.

The plaintiffs were admitted at the trial to be the heirs of Joshua Harlan. They then gave in evidence a deed of conveyance from John Conner to their ancestor, dated the 30th day of November, 1818. It was further admitted by the defendant that Joshua Harlan, in his lifetime, laid out a portion of the land embraced in the deed, into town lots, as a part of the town of Connersville, and that the lot No. 87, in controversy in the suit, was one of those lots.

The defence set up by Brown, who was admittedly defendant under the rule, was an adverse possession by himself and one Solomon Claypool, of twenty years. The evidence introduced by him showed that Joshua Harlan died about the year 1827; that sometime between 1826 and 1828, Solomon Claypool, claiming to be the owner of the lot, leased it for a term of years to be fenced and cleared; that it was accordingly fenced and cleared by the lessee, in one of those years, most probably in 1827; that at the expiration of that lease, he rented it to a tenant to make brick upon it. Shortly afterward, the fence was removed, it does not appear by whom, and the lot remained vacant and unenclosed up to 1843, a period of not less than ten years; but during all that period Claypool continuously claimed, and was generally understood, in the neighborhood, to be the owner; that from 1830 to 1845, both inclusive, the taxes on the lot were annually charged to and paid by Claypool, in which latter year he died. The tax duplicates, which were in evidence, showed that in 1827, the lot was not assessed to any one; that in 1828 and 1829, it was placed on the duplicate, but was included in the list under the heading of "unknown owners;" and that in neither of those years were the taxes upon it paid by either Harlan or Claypool.

The defendant also proved by one Bundrant, that he had known lot No. 87 since 1837; that it was then unenclosed, and was called the property of Solomon Claypool; that in 1843, the defendant, (Brown), went into possession of the lot, fenced it and built a house, and has occupied it ever since.

This was all the evidence.

The plaintiffs asked for several instructions to the jury, all of which the Court refused to give. It is unnecessary, however, to examine whether these instructions should have been given, as they were all substantially embraced in the charge which the Court gave. The jury were fully and correctly instructed as to the law of the case. It only remains to examine whether their verdict was sustained by the evidence.

In their instructions, the Court below charged the jury that a continuous, uninterrupted, peaceable possession of twenty years, under a claim of title, was necessary to make...