O'Donahue v. Creager

• Decision Date: 19 February 1889
• Docket Number: 13,605
• Parties: O'Donahue et al. v. Creager
• Court: Indiana Supreme Court

20 N.E. 267

117 Ind. 372

O'Donahue et al. v. Creager

No. 13,605

Supreme Court of Indiana

February 19, 1889

From the Daviess Circuit Court.

The judgment is reversed, with costs, and the court is directed to grant a new trial, and proceed in accordance with this opinion.

J. W Ogdon and M. F. Burke, for appellants.

W. R Gardiner and S. H. Taylor, for appellee.

OPINION

Berkshire, J.

The case as made by the complaint is, in brief, that the maiden name of the appellee was Bridget Grannon, and her father's name Bernard Grannon, who was a brother of the appellant Grannon; that, on the 8th day of April, 1850, while the appellee was but a small child, the appellant Grannon entered and took up, with money of hers and her said father, from the United States government and the trustees of the Wabash and Erie Canal, the following real estate in Daviess county, Indiana, to wit: The northwest quarter of the northwest quarter of section 10, town. 3 north, of range 5 west; that, on the 1st day of June, 1850, the trustees of the Wabash and Erie Canal executed to the appellee a deed for said real estate; that, on the 27th day of February, 1852, the appellant Grannon procured from another Bridget Grannon, with the fraudulent intent to cheat and injure the appellee, a deed of conveyance for the said real estate and certain other real estate, and thereafter and on the 3d day of September, 1885, said appellant Grannon, with the further fraudulent intent to cheat and injure the appellee, sold and by his deed conveyed said real estate, so conveyed to him, to the appellant O'Donahue, for a consideration of $ 3,900; that said forty-acre tract was then and still is of the value of $ 2,000; that said appellant O'Donahue took the title with full knowledge of all the facts, and that the appellee was the owner of the said forty-acre tract; that he has paid but $ 500 of the said purchase-price, the proper proportion of which as applicable to the said fortyacre tract is $ 166.66. The prayer for relief is, that the deeds be set aside and the title of the appellee quieted, or if it be found that the appellant O'Donahue is an innocent purchaser for value, that he be required to pay the remainder of said purchase-money to the appellee.

The answer filed by the appellants is in four paragraphs: 1. The general denial. 2. The statute of limitations, that the cause of action did not accrue within six years. 3. The statute of limitations, that the cause of action did not accrue within fifteen years. 4. The statute of limitations, that the cause of action did not accrue within twenty years.

The appellee addressed a demurrer to the second, third and fourth paragraphs, separately assigning as cause of demurrer a want of sufficient facts to constitute a defence to the action; the court sustained the demurrer to each paragraph, and the appellants reserved proper exceptions.

There was a jury trial and the following verdict returned for the appellee:

"We, the jury, find for the plaintiff and assess her damages at $ 775."

The following is the judgment rendered by the court:

"It is, therefore, considered by the court that the plaintiff recover of and from the defendants said sum of $ 775, with interest at six per cent. from this date, and costs of suit herein expended.

"It is further considered by the court that the defendant O'Donahue pay said sum of money and interest and costs to the plaintiff out of the balance of the purchase-money owing from him for the real estate described in the complaint herein, and that, upon payment of the amount of this judgment, he be entitled to credit for the sums so paid on the balance due his co-defendant from him on said real estate."

The appellants assign several errors, as follows:

1. The court erred in sustaining the demurrer to the second, third and fourth paragraphs of answer, and each of said paragraphs.

2. The court erred in overruling the motion for a venire de novo.

3. The court erred in overruling the motion for a new trial.

4. The court erred in overruling the motion in arrest of judgment.

The facts stated in the complaint constitute a cause of action to quiet title to real estate, and that only. In actions to quiet title all matters of defence may be proved under the general denial, and, therefore, though it is our opinion that both the third and fourth paragraphs were good, and that the court erred in sustaining the demurrers thereto, the error is unavailable, for the reason that every fact that could have been proved had the demurrers been overruled, was provable under the general denial. Eve v. Louis, 91 Ind. 457.

We are unable to see upon what theory the appellee obtained a money judgment; the complaint charged notice home to O'Donahue when he purchased, and the evidence proved that he had paid but a small part of the purchasemoney. It must have been upon...