Fish v. Blasser

• Decision Date: 06 November 1896
• Docket Number: 17,774
• Parties: Fish v. Blasser et ux
• Court: Indiana Supreme Court

45 N.E. 63

146 Ind. 186

Fish v. Blasser et ux

No. 17,774

Supreme Court of Indiana

November 6, 1896

From the Pulaski Circuit Court.

Affirmed.

Borders & Borders, for appellant.

Steis & Hathaway, for appellee.

OPINION

Jordan, J.

Appellant prosecuted this action in the lower court to recover possession of certain described real estate and to quiet title. Appellee filed an answer and cross-complaint. By the latter he set up and sought to recover, as an occupying claimant under the code, taxes paid and the value of permanent improvements made by him upon the land in dispute, subsequent to its purchase. A trial resulted in favor of the appellant upon his complaint, and in favor of the appellee upon the matters set up in his cross-complaint. Counsel for appellant insist upon two alleged errors, which are predicated upon the court's conclusion of law upon the special finding of facts, and upon its action in overruling the motion to modify the judgment. An outline of the material facts, as found by the court, are substantially as follows:

On March 2, 1878, the auditor of Pulaski county, wherein the land in controversy is situated, executed to one Sedgwick a tax deed "in due form" for said real estate upon a previous sale of the same to him for delinquent taxes. On October 15, 1883, Sedgwick and wife executed a quit-claim deed for the same land to the appellee. Both of these deeds were properly recorded. At the time appellee acquired his claim to the land it was not under fence, and was "uncultivated, unimproved," and covered by water during the greater portion of the year. After receiving his deed from Sedgwick, appellee took possession thereunder in 1884, and each year he would harvest the grass which grew wild thereon, and while occupying it under color of title, he paid the taxes and made permanent and valuable improvements such as fencing, grading, and ditching said land, and was still in possession at the commencement of this action. On July 11, 1895, the appellant obtained a deed to the land from Lyle E. Ripley, and before the commencement of this action demanded possession of appellee.

The court found, as a conclusion of law, that appellee obtained no title to the land through the deed from Sedgwick; but that such conveyance was sufficient to, and did give him color of title, and that he was entitled to recover for taxes paid and improvements made, under the provisions of the law relative to occupying claimants. Appellant insists that the tax deed to Sedgwick did not give color of title sufficient to entitle appellee to recover the taxes paid and the value of permanent improvements. Section 1093, Burns' R. S. 1894 (1080, R. S. 1881), of the statute, applicable to the rights of an occupant of land under color of title provides as follows: "The purchaser in good faith at any judicial or tax sale, made by the proper person or officer, has color of title within the meaning of this act, whether such person or officer had sufficient...