Dutton v. Ensley

• Decision Date: 13 October 1898
• Docket Number: 2,516
• Citation: 51 N.E. 380,21 Ind.App. 46
• Parties: DUTTON v. ENSLEY
• Court: Indiana Appellate Court

51 N.E. 380

21 Ind.App. 46

DUTTON v. ENSLEY

No. 2,516

Court of Appeals of Indiana

October 13, 1898

From the Pulaski Circuit Court.

Reversed.

H. A Steis and M. M. Hathaway, for appellant.

John C Nye, for appellee.

OPINION

WILEY J.

Appellee was plaintiff below, and sued appellant for the alleged wrongful conversion of a certain frame dwelling house. The issue was joined by a general denial, trial by the court, special finding of facts made, conclusions of law thereon, and judgment for appellee. The court found that appellee, on the 9th day of October, 1889, was the owner of the W. 1/2 of the S. E. 1/4 of section 7, township 30, range 2 W., in Pulaski county, Indiana; that on said day she executed a mortgage on said land, her husband joining her, to the state of Indiana, to secure a school fund loan for $ ; that with a part of the money so borrowed, appellee, in 1887, built the house in controversy, but by mistake built it on land of one Morrison, which was adjoining her land above described; that on September 23, 1889, appellee conveyed said land by warranty deed, her husband joining, to George T. Bouslog; that on the same day said Bouslog conveyed said land to appellee's husband; that on May 16, 1891, William Ensley, the appellee joining with him as his wife, conveyed by warranty deed said land to Edwin J. Short; that when said land was sold to said Short, the agent of the Ensleys showed said house as a part of the improvements on said land, but nothing was said as to what land said house was upon; that on July 17, 1891, said Short and wife conveyed said real estate to one Butterfield; that said building was set on blocks about eighteen inches high, but was not made fast to said blocks; that when appellee erected said building she supposed she was putting it on her own land, as above described, and did not learn to the contrary until after she moved into it; that she did not know for about fifteen months that said building was on the Morrison land; that about five months after she learned that said house was situated on Morrison's land she and her husband moved away, but employed persons to look after it for her; that the interest on said loan being in default, said land was sold by the auditor in March, 1893, and bid in by one Benson for $ 355.90, the amount then due; that said auditor conveyed said land by deed to said Benson; that before the commencement of this action said Benson conveyed said land by quitclaim to appellant; that in the fall of 1893, appellant, without appellee's permission, removed said house, and converted it to his own use; that it was of the value of $ 50; that in May, 1891, said William Ensley and appellee, his wife, placed said real estate in the hands of one Hey, as agent, for sale; that they described the improvements thereon, including the house in controversy, and that when said real estate was sold to said Short said house was taken into account as a part of the improvements thereon; that prior to the commencement of this action, appellee did not make any demand on appellant for the return of said house, or payment for the same; and that when said house was built it was placed where it was by mistake. As a conclusion of law the court stated that appellee was entitled to recover of appellant $ 50, and rendered judgment accordingly. Appellant's motion for a new trial was overruled.

The errors assigned are: (1) Overruling the motion for a new trial, and (2) that the court erred in its conclusion of law.

For a correct disposition of the controlling question in the case we need only consider the assignment of error, calling in question the conclusion of law as stated by the court. From the finding of facts it is clear that appellee and her husband knew, before they placed the land in...