Equitable Trust Co. of New London v. Milligan

• Decision Date: 18 June 1902
• Parties: EQUITABLE TRUST CO. OF NEW LONDON v. MILLIGAN.
• Court: Indiana Appellate Court

64 N.E. 673

EQUITABLE TRUST CO. OF NEW LONDON

v.MILLIGAN.^*

Appellate Court of Indiana, Division No. 2.

June 18, 1902.

Appeal from superior court, Marion county; John L. McMasters, Judge.

Action by Harry J. Milligan against the Equitable Trust Company of New London. From a judgment for plaintiff, defendant appeals. Reversed.

D. M. Bradbury and F. W. Ballenger, for appellant. H. J. Milligan, in pro. per.

ROBY, J.

Action by appellee against appellant. Special finding of facts, and conclusionsof law thereon. Judgment for $1,391.45.

It appears from the special findings that appellant was in possession, claiming ownership, of that part of outlot 82 in the city of Indianapolis designated on the following plat by the letters “E,” “H,” “D,” “B”:

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Appellee was shown the land by a real estate agent representing appellant, who stated to him that the lot was 60 feet wide on Washington street, and that the south boundary was the line of the railroad right of way. He called attention to this boundary, as an inducement for appellee to purchase, and stated that, by reason of the lot abutting upon the railroad, it had an additional value. Appellee had no other information, and believed and relied upon such statements. The agent acted honestly and without fraudulent purpose. Appellant's title was based upon a mortgage foreclosure. It furnished appellee an abstract thereto, the description in which followed the description carried through such proceedings. The title as shown by the abstract proving satisfactory, appellee purchased the land, as he supposed, included in the tract above designated; receiving a deed therefor, with special covenants, amounting to a quitclaim, in which the description contained in the abstract was inserted. He took possession thereunder, and paid the agreed price of $16,500. Some six months later he discovered that the land described in such deed, and the only part of said lot to which appellant had any record title, was the tract designated on the plat by the letters “A,” “C,” “E,” “H”; leaving that portion of said lot designated by the letters “A,” “B,” “C,” “D,” undisposed of. Appellant, as well as the agent, believed that the description contained in the deed covered the entire tract. There are other facts found, which, in view of the disposition to be made of the case, need not be stated.

If the appellee was entitled to recover at all, the measure of his damages was upon the basis of compensation, which would be the difference between the value of the property pointed out, and the value of the property in fact conveyed. 3 Suth. Dam. (2d Ed.) § 1171; Sangster v. Prather, 34 Ind. 504. The findings and the evidence wholly fail to disclose who holds the record title to the omitted strip of land, or what claim, if any, is made to it by him. Appellant maintains that appellee received possession of the entire tract of land, and that, by virtue of over 24 years' adverse hostile possession, he holds and has title to the same; that, having the land, he cannot be permitted to recover its value, also, or any part thereof. If the person holding record title to the strip in question were a party, a decree could be rendered fixing the final rights of all concerned. The holder of such title is not a party, and, there having been no investigation sufficient to enable the court to find facts necessary to determine the ultimate rights of these parties, no...