Douglass v. Thomas

• Decision Date: 07 October 1885
• Docket Number: 11,435
• Citation: 2 N.E. 562,103 Ind. 187
• Parties: Douglass et al. v. Thomas
• Court: Indiana Supreme Court

2 N.E. 562

103 Ind. 187

Douglass et al. v. Thomas

No. 11,435

Supreme Court of Indiana

October 7, 1885

From the Kosciusko Circuit Court.

C Clemans, for appellants.

A. G Woods, for appellee.

OPINION

Mitchell, C. J.

This was a proceeding by Thomas against Douglass and others to foreclose a mortgage.

The defendants pleaded by way of counter-claim, that the consideration of the note, mentioned in the complaint, was part of the purchase-price of the several parcels of land described in the mortgage, which land it was averred had been conveyed to the mortgagors by the mortgagee, by deed containing full covenants of warranty. It was averred that the purchase-price agreed to be paid for the land was $ 1,200, and that it had all been paid except the amount covered by the note in suit, the principal of which was $ 300.

The defendants then averred the following breach in the covenants of warranty contained in their deed: "That said plaintiff did not have title to said real estate; that as to the undivided one-half of lot three, block nine, of the above described tract of land, plaintiff had no title whatever when he made said conveyance to these defendants, but that the title thereof was in another party, to wit, the Pittsburgh Fort Wayne and Chicago Railroad Company, and that neither these defendants nor the plaintiff herein have obtained title to said real estate since the making of said conveyance." It was averred further that the defendants "have wholly lost the undivided one-half of lot three, block nine," and that "it will cost $ 450 to obtain a clear title to said real estate."

Upon issues made, there was a trial by a jury, resulting in a verdict and judgment, over a motion for a new trial, for the full amount of the note and interest.

The only error assigned and argued is, that the court erred in overruling the appellants' motion for a new trial. The conveyance from Thomas to the appellants was made on the 16th day of March, 1878.

It appeared in evidence that, in June, 1852, Lewis Keith, a remote grantor of Thomas, while owning the land in controversy, conveyed to the Fort Wayne and Chicago Railroad Company "the right of way," of an undefined width, over lot three, which was part of the land mortgaged. There was a stipulation in the deed that the railroad company was to "have and hold the said rights and privileges to the use of said company so long as the same shall be required for the uses and purposes of said road." It also appeared in evidence that the railroad company occupied with its tracks part of lot three.

At the proper time, after stating the issues, the court instructed the jury, in substance, that the defendants could not prevail on their counter-claim, as pleaded, unless the evidence established that, at the time Thomas conveyed to the appellants, he had no title to the land in dispute; saying to the jury, in substance, that the counter-claim pleaded did not proceed upon the theory that there was a lien or encumbrance on the land, but upon the assumption that there had been an entire...