Fuelling v. Fuesse

• Decision Date: 19 March 1909
• Docket Number: 6,526
• Citation: 87 N.E. 700,43 Ind.App. 441
• Parties: FUELLING ET AL. v. FUESSE
• Court: Indiana Appellate Court

87 N.E. 700

43 Ind.App. 441

FUELLING ET AL. v. FUESSE

No. 6,526

Court of Appeals of Indiana

March 19, 1909

From Dekalb Circuit Court; Emmet A. Brattan, Judge.

Suit by Henry Fuesse against John F. Fuelling and others. From a decree for plaintiff, defendants appeal.

Reversed.

S. R Alden, for appellants.

Ballou & Hoffman, for appellee.

OPINION

ROBY, J.

This suit arises out of a controversy as to a boundary line between the parties, who own respectively the east and west halves of a certain quarter section of land in Allen county. The appellee, who was the plaintiff, claims title to a flat-iron strip, containing about three acres, by virtue (1) of adverse possession for twenty years; (2) by an agreement with appellee, acted upon by him in such manner as renders it inequitable for appellants to assert their true title; (3) by an official survey unappealed from.

The survey, which is claimed to have been official, was not made by the surveyor of Allen county or his deputy, but by the surveyor of Dekalb county, and may be dismissed without considering questions which might arise had it been made by an authorized person. The court submitted to the jury the issue of adverse, continued possession for twenty years, and among others gave the following instruction: "I instruct you that adverse possession of unproductive land, without proof of actual occupancy, is shown by the wording of deeds under which the occupant claims, payment of taxes, cutting of valuable timber, going upon the land at intervals, claiming absolute ownership, the employment of agents in the vicinity to look after it, the doing of any of the above things without asking permission and in disregard of all other conflicting claims. Such act will confer possession to the extent of the land called for by the deed." There was no evidence of adverse possession of the land in controversy for such a time as could raise a prescriptive right. The appellee requested an instruction withdrawing this question from the jury. This instruction should have been given. Instruction thirteen just set out, was not only erroneous, as applied to the evidence, but it was erroneous so far as it left the construction of the many deeds in evidence to the jury. Such construction was for the court. Reid v Klein (1894), 138 Ind. 484, 37 N.E. 967; Spence v. Board, etc. (1889), 117 Ind. 573, 18 N.E. 513; Dutch v. Anderson (1881), 75 Ind. 35; Louthain v. Miller (1882), 85 Ind. 161; Masons', etc., Ins. Assn. v. Brockman (1898), 20 Ind.App. 206, 50 N.E. 493; Union Life Ins. Co. v. Jameson (1903), 31 Ind.App. 28, 67 N.E. 199.

Two propositions must be taken as established in this case: (1) That appellant John F. Fuelling has a clear record title to the land in controversy. He is the owner of the west half of the southwest quarter. The section is a fractional one. If there was a deficiency in acreage it would reduce the amount of his holding. There is, however, an excess, and he is entitled to this. Keesling v. Truitt (1868), 30 Ind. 306; Grover v. Paddock (1882), 84 Ind. 244. The court so instructed the jury, but it did not withdraw the thirteenth instruction, by doing which the error in leaving the construction of deeds to the jury could have been cured. Evansville, etc., R. Co. v. Clements (1904), 32 Ind.App. 659, 70 N.E. 554. (2) The court erred in submitting the question of adverse possession.

It is insisted that the answers to interrogatories show the verdict to rest upon the second ground of contention before stated. The substance of the interrogatory relied upon is that said section was surveyed by one Krontz, after giving notice to the owners thereof, and a line "established" between the east and west halves of the south-west quarter, dividing it equally as to the amount of land; that appellants accepted it as the true division line; that they and appellee agreed to accept it as the true line, and that appellee, after said agreement, upon request of appellants, built a partition fence on the south eighty rods of said line. The rule relative to the acquirement of title to real estate in this manner is nowhere more clearly and succinctly stated than by Worden, J., in Meyers v. Johnson (1860), 15 Ind. 261. It is as follows: "The deduction which we draw from the general course of decisions is, that where adjoining proprietors agree by parol upon a boundary line between them, different from the true boundary, and no consideration moves from one to the other, except the mutual agreement that the line agreed upon shall be considered the true one, in order to make such agreement conclusive (in cases where the statute of limitations has no application), it is necessary that it should have been acted upon, and followed by the expenditure of money, or the making of improvements, on the faith of the agreement; or other circumstances must have transpired which would render it inequitable for either party to set up the true boundary, and which would estop him to do so." A parol contract for the conveyance of lands is within the statute of frauds, and unenforceable. § 7462 Burns 1908, § 4904 R. S. 1881; Mather v. Scoles (1870), 35 Ind. 1.

It is not, therefore, sufficient for appellee to show a parol agreement for the transfer of a portion of appellants' land to himself, but he must in addition show the existence of such circumstances as would render it inequitable for appellants to set up their true title.

Ordinarily the answers to interrogatories must be in irreconcilable conflict with the general verdict in order that they be effective, and the absence of a finsing is supplied by the general verdict; but here the verdict does not sustain itself. It depends upon the support of the answers, and an exactly opposite rule applies. Harmful error has been shown. The judgment must be reversed, unless the answers to interrogatories show a valid and complete right gained by appellee in appellants' land by estoppel. Reference is made to the interrogatory, not to overthrow the general verdict, but to sustain it by a finding of all facts necessary to support appellee's asserted equity, and nothing is to be taken by intendment. Cook v. McNaughton (1891), 128 Ind. 410, 24 N.E. 361; Pittsburgh, etc., R. Co. v. Spencer (1884), 98 Ind. 186, 192.

It is stated that a survey was made by the surveyor of Dekalb county, dividing the land "equally," and that plaintiff agreed to accept said line as the true division line, and that the plaintiff and defendants "did agree to accept said line as the true division line." The only agreement found or claimed had relation to the line made in this survey. The interrogatories show that the defendants applied to the surveyor of Allen county to have...