Jose  v. Hunter

• Decision Date: 25 April 1913
• Docket Number: No. 7,881.,7,881.
• Citation: 101 N.E. 665
• Parties: JOSE et ux. v. HUNTER et ux.
• Court: Indiana Appellate Court

101 N.E. 665

JOSE et ux.

v.HUNTER et ux.

No. 7,881.

Appellate Court of Indiana, Division No. 1.

April 25, 1913.

Appeal from Superior Court, Marion County; Pliney W. Bartholomew, Judge.

Action by Erskine E. Hunter and wife against Oscar A. Jose and wife, who cross-complained. From a judgment for plaintiffs, defendants appeal. Affirmed.

Charles A. Dryer, of Indianapolis, for appellants. Williams & Schlosser, of Indianapolis, for appellees.

HOTTEL, J.

Appellees, who are husband and wife, filed their complaint in the court below in two paragraphs. The first paragraph is in the usual form in ejectment and alleged that appellees were the owners in fee simple and entitled to the immediate possession of the following real estate in Marion county, state of Indiana, to wit, a part of Nicholas Jose's Second Pleasant Valley addition to said city, a plat of which addition is recorded in Plat Book 9, p. 103, of the records of the recorder's office of said county and particularly described as beginning at the northwest corner of lot 32 in said addition; thence running north 40 feet; thence east 139 feet; thence north to the northeast corner of said lot 32; thence west, along the north line of said lot 32, 139 feet to the place of beginning-the ground thus described being designated on said plat as Herman or Hart street. The second paragraph seeks to quiet title to the same real estate. Appellants, who are also husband and wife, filed a cross-complaint against appellees, claiming to be the owner and entitled to possession of the same real estate and asking that their title be quieted. Appellant Oscar A. Jose filed a second paragraph of cross-complaint in which he, as an occupying claimant under the Code, sought to recover for improvements made on said real estate aggregating $2,350 and taxes paid by him aggregating $120. The cause was put at issue by general denial to each paragraph of the complaint, and cross-complaint. There was a trial by the court, and after it had begun appellees, by permission of the court, filed a supplemental complaint in which they averred in substance that at the time of the filing of their complaint the real estate described therein was burdened with an easement of a street in favor of the public and citizens of the City of Indianapolis, Ind., and that by proceedings duly had by the board of public works said easement and street was vacated on August 21, 1907. Thereupon the appellants filed answer in general denial to the first and second paragraphs of appellees' complaint and the supplemental complaint. At the request of the parties, the court made a special finding of facts and stated its conclusions of law thereon. Judgment was rendered for appellees adjudging that they were the owners in fee simple of said real estate, and that they recover possession thereof together with $50 damages, and that the claim of the appellants to said real estate was without right and unfounded, and that plaintiffs' title thereto be quieted, and that the defendants take nothing by their cross-complaint. From this judgment the appellants appealed and assigned as error: (1) That the court erred in its first, second, and third conclusions of law and each of them separately stated upon the special finding of facts. (2) That the court erred in overruling the appellants' motion for new trial.

Appellees contend that the real estate which they seek to recover by this action was, at the time the action was begun, a street known as Herman or Hart street, lying between two lots in said city, to wit, between lots 13 in Bradley's subdivision, at one time called Reeves' subdivision, and lot 32 in Jose's Second Pleasant Valley addition, both of which lots were owned by appellees when this action was brought and each of which abutted on said street.

It is admitted by the parties that on August 24, 1857, Joseph F. Wingate was then the owner of the following described real estate: “Part of the W. 1/2, N. E. 1/4, Sec. 18, T. 15, N. R. 4 E., bounded as follows: Commencing 5 chs. from N. E. corner of said land, thence west 5 chs., thence south 20.18 chs., thence east 5.14 chs., thence north 20.18 chs., to place of beginning, containing 10 acres.” This description includes the strip of real estate in controversy.

The first and second findings are to the effect that Archibald C. Reed in 1821 procured from the United States by entry the 80 acres, of which the 10 acres above described is a part, and that such 80 acres descended by intermediate conveyances, deeds, wills, and descent cast by the statute until in August, 1857, Joseph F. Wingate became the owner of the fee-simple title of the 10 acres above described.

The substance of the remaining findings follow: Through intermediate conveyances from said Wingate the following persons became the respective owners in fee simple of parts of said 10 acres as follows:

(3) On November 18, 1867, John B. E. Reid became the owner in fee simple of part of the W. 1/2 of the N. E. 1/4 of said section 18, township 15, range 4, bounded as follows: Commencing in the center of the public road 10 chains west of the northeast corner of said tract of land, and running thence south 546 feet, thence east 145 feet, thence north 546 feet, thence west 145 feet, to the place of beginning. Subject to road on north thereof.

(4) On October 12, 1869, George H. Heitkam became the owner in fee simple of that part commencing 5 chains west of the N. E. corner of the W. 1/2 of the N. E. 1/4 of said section 18, township 15, range 4, and running thence west 145 feet to a 40-foot street, and thence south along the east side of said street 546 feet to another 40-foot street, thence east on the north line of said last-named street 145 feet, thence north 546 feet, to the place of beginning; except 30 feet off the north end of the same which is taken up and included in the public highway called the New Bethel gravel road. That the deed from Wingate and all those intermediate and to Heitkam contained the description above set out of the streets on the west and south.

(5) On September 26, 1870, Nicholas Jose became the owner in fee simple of part of the W. 1/2 of the N. E. 1/4 of section 18, township 15, range 4, commencing 586 feet south of a point 5 chains west of the N. E. corner of said land, thence west 185 feet, thence north 40 feet, thence west 145 feet, thence south 754 feet, thence east 330 feet, thence north 714 feet, to the place of beginning.

(6) These tracts just described comprised all of the 10 acres acquired by Joseph F. Wingate except the street referred to in Heitkam's tract.

(7) On September 28, 1870, Joseph F. Wingate conveyed by quitclaim deed to Nicholas Jose, John B. E. Reid, and George H. Heitkam, then the owners of said 10 acres as hereinbefore described, the following described part of said 10 acres: A piece of ground laid out and to be used as a street 40 feet in width and 580 feet in depth bounded as follows: Being that part of the W. 1/2 of the N. E. 1/4 of section 18, township 15, range 4, commencing at a point 475 feet west of the northeast corner of section 18, township 15, range 4, and running thence west 40 feet to a point, thence south 586 feet to a point, thence east 185 feet to a point, thence north 40 feet to a point, thence west 145 feet to a point, thence north 546 feet to the place of beginning. That said deed contained an error in describing the location of said streets in omitting the words “the west half of the northeast quarter of” from the description, and said deed was intended to convey the streets mentioned in the Heitkam description above.

(8) On April 5, 1881, Clarissa J. Reeves, who through intermediate conveyances had become the owner in fee simple of the Heitkam tract above described, executed a plat of the same into 10 lots, which plat was recorded May 9, 1881, in Plat Book 8, p. 17. In this plat the streets on the west and south, being the land described in finding No. 7, were shown as having been given by J. F. Wingate.

(9) On November 5, 1888, Giles S. Bradley, who had become the owner in fee simple of the 10 lots in Clarissa J. Reeves' subdivision, through intermediate conveyances from her subdivided the same into 13 lots as shown by plat in Plat Book 9, p. 68. Lot 13 thereof abutting on and along the north side of the street shown on the south of the subdivision is shown at Nos. 4, 6, and 8 above.

(10) On April 6, 1895, the plaintiffs became the owners in fee simple, through intermediate conveyances from Giles S. Bradley, of said lot 13, and in them the title now rests.

(11) On April 4, 1889, Nicholas Jose, his wife joining, subdivided his tract above described into 35 lots numbered 21 to 55 and designated the subdivision Jose's Second Pleasant Valley addition to the city of Indianapolis. The plat thereof was approved by the city commissioners and is recorded in Plat Book 9, at page 103, and shows, as Herman street, the street mentioned at Nos. 4, 6, 7, and 8 above, on the south side of the Reeves and Bradley subdivision above named in Nos. 8 and 9; lot No. 32 of said Jose's addition abutting on and along the south side of said street.

(12) On February 23, 1895, Nicholas Jose and wife conveyed by warranty deed said lot No. 32, named just above, to the plaintiffs, and in them the title now rests. This deed was made pursuant to a contract or title bond by which said Jose agreed to convey said lot in fee simple, according to the plat of said addition in Book 9, together with all rights and appurtenances thereto, and at the time of said contract of purchase Jose represented such lot 32 to be a corner lot contiguous to and abutting the south side of said Herman street.

(13) On the plat of Jose's Second Pleasant Valley addition, the street on the west side of the Reeves and Bradley subdivision is extended through this addition and is shown as Quince street, and the street on the South of said subdivision is shown as Herman street. By ordinance of the city...