Graham v. Lunsford

• Decision Date: 09 December 1897
• Citation: 48 N.E. 627,149 Ind. 83
• Parties: GRAHAM et al. v. LUNSFORD et al.
• Court: Indiana Supreme Court

149 Ind. 83

48 N.E. 627

GRAHAM et al.

v.LUNSFORD et al.

Supreme Court of Indiana.

Dec. 9, 1897.

Appeal from circuit court, Daviess county; C. K. Tharp, Special Judge.

Action by Laura V. Graham and others against John C. Lunsford and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

James W. Ogdon, for appellants. A. J. Padgett and J. H. O'Neall, for appellees.

JORDAN, J.

This action was instituted by appellants against appellees John C. and Mary J. Lunsford to recover possession of, and to quiet their title to, the following described real estate, situated in Daviess county, Ind., to wit: Beginning 168.90 rods north of the southeast corner of section 18, township 2 N., range 7 W.; running thence due west to Veal's creek; thence up said creek, with the meanders thereof, to the boundary line of said section; thence south, to the place of beginning. The defendants answered the complaint by a general denial. The question of title which appellants seek to present arises on the special finding of facts and the court's conclusion thereon. The facts found by the court are in the main substantially as follows: Plaintiffs and defendants claim their respective titles to the land in dispute through one James C. Veal. On March 23, 1877, one John Scudder owned and held a judgment unsatisfied against the said James C. Veal, which was a lien on the said lands. On April 4, 1883, the sheriff of Daviess county, Ind., executed a sheriff's deed to William F. McDougal to the following lands in said county: All that part of section 18, township 2 N., range 7 W., more particularly described as follows: Beginning 168 1/2 rods north of the southeast corner of said section 18; running thence due west to Veal's creek; thence up said creek, with the meanders thereof, to the east side of said section; thence south, to the place of beginning. The finding then states that this sheriff's deed recites that on September 27, 1881, in a certain action in the Daviess circuit court, wherein William H. Dillingham et al. were plaintiffs, and James C. and Mary E. Veal et al. were defendants, a judgment was rendered against said Veal et al. for the sum of $50,511.54, and a foreclosure of a mortgage executed by said Veals was decreed by the court, and all of the interest of the said James C. and Mary E. Veal, in and to certain lands, was ordered to be sold, among which was the tract above described. It is found by the court that said deed further recited the issuing of a copy of the decree to the sheriff of the county, who, after duly advertising the sale of the lands, sold the same on the ----- day of -----, 1882, to John H. O'Neal, for the sum of $ -----; that a certificate of sale was executed to said purchaser by the sheriff, which was assigned to William F. McDougal, to whom a sheriff's deed was executed after the expiration of one year. The court further finds that on April 17, 1883, McDougal and wife joined O'Neal and David J. Heffron and their wives in a deed conveying the lands in controversy, among others, to Thomas B. Graham. In said deed of conveyance McDougal conveyed and quitclaimed to Graham and O'Neal, and Heffron conveyed and warranted the land to him. Graham occupied said lands, and used the same until the summer of 1885, when he died, leaving a will by which he devised all of his real estate to his surviving widow, Margaret Graham. On October 9, 1886, an execution was issued on the Scudder judgment, rendered in March, 1877, against Veal, and the sheriff of Daviess county levied the same, for the amount due thereon, on all the interest of Veal in section 18, township 2 N., range 7 W., not devested by a certain mortgage executed to Thomas B. Graham by said Veal; and on March 5, 1887, after duly advertising the sale, sold the said lands to William F. McDougal; and on May 12, 1890, a sheriff's deed, under said sale, was executed to said purchaser for all of said section 18, except 337.80 acres off of the south side thereof, and except that part of said section lying north of Veal's creek. This deed was duly recorded. On August 31, 1888, Margaret Graham commenced an action in the Daviess circuit court against said McDougal to quiet title to these and other lands, and such proceedings were had in said suit that, under the issues joined therein between the parties, the court adjudged McDougal to be the owner of all that part of said section 18 lying south of Veal's creek and north of a line drawn east and west through the section so as to leave 337.80 acres on the south side of this line, and quieted the title in McDougal thereto against said plaintiff and all persons claiming through her. Subsequently, in July, 1889, a controversy arose as to the north line of the 337.80 acres, and a survey, on notice of McDougal to Margaret...