Essax v. Meyers

• Decision Date: 26 November 1901
• Citation: 27 Ind.App. 639,62 N.E. 96
• Parties: ESSAX et al. v. MEYERS.
• Court: Indiana Appellate Court

27 Ind.App. 639

62 N.E. 96

ESSAX et al.

v.MEYERS.

Appellate Court of Indiana, Division No. 1.

Nov. 26, 1901.

Appeal from circuit court, Whitley county; Joseph W. Adair, Judge.

Suit by Mary A. Meyers against Bert Essax and others. From a decree for plaintiff, defendants appeal. Reversed.

Andrew A. Adams, for appellants. Marshall, McNagny & Clugston, for appellee.

ROBINSON, P. J.

Appellee sued to quiet her title to certain real estate, basing her right to the relief demanded upon a tax deed issued to her by the county auditor. Special finding of facts and conclusion of law in appellee's favor, motion for a new trial overruled, and judgment for appellee.

Counsel for appellee argues that the evidence is not in the record. It is not controverted that there has been a substantial compliance with the provisions of the act approved March 8, 1897; but it is claimed that there has not been a compliance with the act approved March 3, 1899. As appellee's brief was filed before the decision in Adams v. State, 156 Ind. 596, 59 N. E. 24, was rendered, we think it unnecessary to notice the question further. The evidence is in the record under the act of 1897. The special finding undertakes to set out the different acts of the county officers leading up to a sale of the property for delinquent taxes, and the execution of the tax deed. As to the execution of the deed to appellee, the finding states that “a deed for said premises was on the 21st day of July, 1897, duly issued, in accordance with the statutes of this state, to the plaintiff herein, by Daniel W. Sanders, auditor of Whitley county, Indiana.” We regard this as the statement of a conclusion, and not a statement of fact. It would not be necessary to set out the deed, but it should be stated at least that the deed was signed, witnessed, and acknowledged by the persons designated by the statute.

But if we treat the statement as a statement of fact, it is not supported by the evidence. The deed introduced in evidence, and under which appellee claims title, was not witnessed by the county treasurer. The statute requires that the deed shall be executed by the county auditor under his hand and seal, witnessed by the county treasurer, and acknowledged by the county recorder or other officer authorized to take acknowledgments. Burns' Rev. St. 1894, § 8624 (Horner's Rev. St. 1897, § 6473). In the case of Armstrong v. Hufty, 156 Ind. 606, 55 N. E. 443, 60 N. E. 1080, it is said that a tax deed not...