Henry v. Carson

• Decision Date: 13 February 1884
• Docket Number: 10,718
• Citation: 96 Ind. 412
• Parties: Henry et al. v. Carson
• Court: Indiana Supreme Court

96 Ind. 412

Henry et al. v. Carson

No. 10,718

Supreme Court of Indiana

February 13, 1884

Petilion for a Rehearing overruled June 25, 1884.

From the Madison Circuit Court.

J. H Mellett, E. H. Bundy, C. L. Henry and H. C. Ryan, for appellants.

M. S Robinson and J. W. Lovett, for appellee.

OPINION

Bicknell C. C.

James Carson brought this suit against Charles L. Henry. The complaint was in two paragraphs. The first was in the statutory form, demanding the possession of land and damages for its detention. The second averred that the plaintiff, on the 18th of August, 1860, made a contract with Moses Moreland and William Moreland, to sell them the land in controversy and make them a deed therefor on the 25th of December then next, on payment by them of the purchase-money in pursuance of the contract; that plaintiff and his wife, then residents of Tennessee, made and acknowledged a deed for said land, to be tendered to said Morelands on payment of the purchase-money, and placed the same in the hands of the plaintiff's attorney, to be delivered to said Morelands on their payment of said purchase-money, and not otherwise; that said deed was not delivered by said attorney, nor by plaintiff, nor by anybody having authority therefor, either to the said Morelands or to anybody for their use, but was fraudulently obtained by some person unknown, and without any lawful authority was recorded in said county of Madison, thirteen years after its date, without the knowledge of the plaintiff, and that plaintiff never knew of such recording until immediately before the commencement of this suit; that in January, 1865, said Morelands and their wives made a deed for said land to Benjamin F. Alexander, who, with his wife, made a deed therefor to Hardy and Russell, on the 2d of March, 1865; that the deed to said Alexander was not recorded until 1871, and said deed to Hardy and Russell was not recorded until 1876; that on April 2d, 1866, said Russell and his wife conveyed the land to said Hardy by deed recorded in 1868; that on February 4th, 1880, said Hardy conveyed the land to Bailey Davis, who, on December 23d, 1881, conveyed the same to the defendant Henry, who is now in possession thereof; that plaintiff never received any consideration for said deed to the Morelands, who failed to comply with and abandoned said contract, and forfeited all their rights under it, and that said Benjamin F. Alexander, and all claiming under him as aforesaid, took possession of said land without any right and without the plaintiff's knowledge or consent; that in the spring of 1861 the plaintiff removed from Tennessee to Arkansas, and lived there until August 20th, 1866; that from 1861 to August 20th, 1866, hostilities existed between the United States and the States of Tennessee and Arkansas, as parts of the Southern Confederacy, but plaintiff never renounced his allegiance to the United States, but remained a loyal citizen; that all of the deeds aforesaid are void; that they conveyed no title as against the plaintiff, but are a cloud upon his title. This paragraph prays that plaintiff's title may be quieted, and for all proper relief.

To this complaint Bailey Davis was made a co-defendant on his own petition, which alleged that he was bound to the defendant Henry by covenants of warranty.

The defendants demurred separately to each paragraph of the complaint for want of facts sufficient. These demurrers were overruled. The defendants separately answered the complaint by general denial, and the defendant Henry filed a cross complaint against the plaintiff, claiming to be the owner of the land, and praying that his title be quieted against the plaintiff's claim. The plaintiff answered the cross complaint by a general denial.

The issues were tried by the court, who found for the plaintiff upon the complaint and upon the cross complaint, with $ 360 damages against the defendant Henry, and that said deed to the Morelands was never delivered, and that it and all the subsequent deeds aforesaid were a cloud upon the plaintiff's title, which ought to be removed.

The defendants moved for a new trial, alleging thirteen reasons therefor. This motion was overruled. Judgment was rendered pursuant to the finding. The defendants appealed.

The errors assigned are overruling the demurrers to each paragraph of the complaint, and overruling the motion for a new trial.

The appellants admit in their brief that the first paragraph of the complaint was good, and we think the second paragraph was also good. The averments of that paragraph being admitted by the demurrer, the deed to the Morelands was never delivered, but was fraudulently obtained and put on record by some unknown person thirteen years after its date, the plaintiff knowing nothing about it until immediately before suit brought; it was, therefore, no better than a forged deed recorded under the same circumstances, the party defrauded being ignorant of the forgery until immediately before his suit brought for relief. There was no error in overruling the demurrers to the several paragraphs of the complaint.

The first four causes for a new trial are, substantially, that the finding is not sustained by the evidence and is contrary to law.

The evidence is in some respects conflicting, but it appeared clearly that the appellee was the owner of the land in controversy, and that the defendant claimed it under certain deeds as alleged in the complaint, and that the plaintiff, in 1860, was living in Tennessee and moved thence to Arkansas, in May, 1861, where he has lived ever since; that the plaintiff, by his brother and attorney in fact, who lived in Ohio, had given the Morelands a bond for a deed, reciting a sale of the land by the appellee to the Morelands for $ 3,500, payable, $ 100 in advance, $ 900 on December 25th, 1860, $ 1,000 on December 25th, 1861, $ 750 on December 25th, 1862, and $ 750 on December 25th, 1863, with interest after December 25th, 1860, which payments were secured by notes of the Morelands; that the bond was conditioned for the execution of a deed to the Morelands on payment of the purchase-money as above, and that after the payment of the $ 900 due December 25th, 1860, the Morelands should have possession of the land.

There was evidence tending to show that the Morelands were unable to make the payment of $ 900 on December 25th, 1860, and were then notified that they could not expect possession of the land until they complied with their contract in that respect; that the appellee then left the notes and deed with his attorneys, with instructions to carry out the contract and deliver the deed to the Morelands if the payment should be made; that nothing was ever paid to the appellee for the land except said advance payment of $ 100, and that he never gave authority to anybody to deliver the deed, except the above conditional authority, to his attorneys, and never gave the Morelands authority to take possession of the land, and never knew they had so taken possession, until the day before the trial of this suit; that the appellee, after the failure of the Morelands to pay the $ 900 due December 25th, 1860, returned to Tennessee; that in May, 1861, he removed to northeastern Arkansas, where he has lived ever since; that appellee was never able to come to Indiana to look after the land; that he wrote to several attorneys of Indianapolis, who declined to act without money; that he wrote to his own attorneys but received no information from them; that the appellee received by mail a notice of proceedings in the United States District Court at Indianapolis, for the confiscation of said notes, which notice required him to appear on February 1st, 1864, but was not received by him until several months after that date, and that he never made any further inquiry about the land, "because he thought that Uncle Sam had got hold of it;" that it was confiscated by the United States, and he never knew it was not confiscated until about two months before the trial of this suit.

It appeared by a transcript of said confiscation proceedings, that the property attempted to be confiscated was a judgment in the Madison Circuit Court in favor of the appellee against said Morelands, at April term, 1861, for $ 917.60, with a credit thereon of $ 500, and two notes against the same parties, one due December 25th, 1862, and the other due December 25th, 1863, and that the alleged cause of confiscation was, that the appellee had been engaged in aiding and abetting the Rebellion. The transcript showed that the information was filed January 17th, 1863, and that afterwards a monition was issued requiring the marshal to attach the property and detain it until the further order of the court, and to give notice, etc., and that said monition was returned on January 20th, 1863, with a return of the marshal showing a seizure of the property. The transcript showed that the affidavit, on which the information was founded, was made by the said Moses Moreland, on January 14th, 1868, who swore that the appellee was in open rebellion, but there was evidence tending to show that this affidavit was false, and that the appellee was all the time loyal to the United States.

The transcript further showed that the amount of the indebtedness confiscated was $ 3,550, which was ordered to be sold, and was sold to James Smith for $ 202, which was applied as follows: For marshal's costs $ 51.36; for clerk's costs $ 54; for docket fee $ 20; and that the remainder was applied in other cases against another party, and that a certificate of purchase was issued to the said James Smith, who was engaged in the clerk's office of said district court.

There was also evidence tending to show that the Morelands took possession of the...