Johnson v. Pontious
| Decision Date | 16 April 1889 |
| Docket Number | 13,469 |
| Citation | 20 N.E. 792,118 Ind. 270 |
| Parties | Johnson v. Pontious |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
Judgment is reversed, with costs.
M. L Essick and O. F. Montgomery, for appellant.
J. S Slick and F. H. Terry, for appellee.
This is an action brought by the appellant against the appellee for the partition of certain real estate situated in Fulton county. The appellee answered the complaint by filing a general denial. He also filed a cross-complaint, to which the appellant answered by filing a general denial. The cause was tried by the court, without a jury, and a general finding made for the appellee. The appellant filed a motion for a new trial, which was overruled and the proper exception reserved, after which the court rendered a general judgment for the appellee.
There is but one error assigned, and that is that the court erred in overruling the motion for a new trial.
There are but two reasons assigned for a new trial: 1. The decision of the court is not sustained by sufficient evidence; and, 2. The decision of the court is contrary to law.
The main and only principal question in the case is whether or not there is any evidence to support the finding of the court. It is admitted that Solomon Pontious died on the 31st day of August, 1869, intestate, and the owner of the land in controversy and holding the legal title thereto, and that he left, as his only heirs-at-law, Isaac, Levi, Samuel, Moses, John, Edward, Joseph, Aaron and Jonathan Pontious, Hester Hoffman, Elizabeth Brown and Mary Shafer, all being sons and daughters of the decedent; that in the year 1885 Isaac Pontious, one of said sons, died intestate, leaving as his only heirs-at-law Jefferson, Isaac and Rachel Pontious, Lucetta Rupert, Louisa Gurlich, Mary Marrett and Henrietta Myers, all being sons and daughters of the decedent. A quitclaim deed, bearing date November 8th, 1869, from Edward Pontious, the appellee, to one Adam Hoffman, for the real estate in controversy, was introduced in evidence by the appellant; and also a quitclaim deed, bearing date April 13, 1886, from all of the heirs of Solomon Pontious, except the appellee and Isaac, who had deceased, and all of the heirs of Isaac, except Rachel. Adam Hoffman, the grantee of the appellee, was one of the grantors in this deed. There is no controversy but that the legal title was in the appellant at the commencement of the action, except as to one eighty-fourth, which Rachel, the daughter of Isaac, conveyed to the appellee, and which the appellant concedes was and is in the appellee.
The appellee alleges in his cross-complaint that he is the owner in fee simple of the real estate in controversy, and asks that his title thereto be quieted.
Whenever, in an action of ejectment or to quiet title, the complaint or cross-complaint alleges a legal title, a recovery can not be had by proof of an equitable title. Stout v. McPheeters, 84 Ind. 585; Hunt v. Campbell, 83 Ind. 48; McMannus v. Smith, 53 Ind. 211; Stehman v. Crull, 26 Ind. 436; Rowe v. Beckett, 30 Ind. 154; Groves v. Marks, 32 Ind. 319.
The foregoing were cases to recover the possession of real estate, but all of the provisions of the statute in regard to actions to recover the possession of real estate apply to actions to quiet title. Green v. Glynn, 71 Ind. 336. The same general rules govern a cross-complaint that govern a complaint. Rausch v. Trustees, etc., 107 Ind. 1, 8 N.E. 25; Conger v. Miller, 104 Ind. 592, 4 N.E. 300.
The finding of the court covered the issues joined upon the cross-complaint as well as those joined upon the complaint, and the appellee, upon the finding of the court, was as much entitled to a judgment quieting his title as he was to a judgment in the main action; and taking the issues, finding and judgment into consideration, we are of the opinion that the judgment rendered as effectually quieted the appellee's title as if it had done so pro forma. As the cross-complaint declared upon a legal title, and as the legal title was conceded to be in the appellant, the court should at least have found for the appellant upon the issues joined upon the cross-complaint and rendered judgment for appellant accordingly, and in finding for the appellee generally and in rendering a general judgment in his favor the court committed an error. But, upon the evidence, was the appellee entitled to a judgment in the main action?
No question of tenancy or notice was raised in the court below. The appellee defended the action upon the theory that he was the equitable owner of the land through a parol contract of purchase from his brothers and sisters and Hoffman, to whom he had theretofore conveyed his undivided interest. He claims to have made a parol contract for the land, to have entered into possession under the contract, and to have made lasting and valuable improvements thereon. Unless there was a contract, possession taken under it, and a payment of the purchase-money, the appellee held no equitable title and could not successfully defend the action on the ground of equitable ownership. Walter...
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