Liggett v. Lozier

• Decision Date: 28 November 1892
• Citation: 32 N.E. 712,133 Ind. 451
• Parties: LIGGETT et al. v. LOZIER.
• Court: Indiana Supreme Court

133 Ind. 451

32 N.E. 712

LIGGETT et al.

v.LOZIER.

Supreme Court of Indiana.

Nov. 28, 1892.

Appeal from circuit court, Ohio county; A. C. Downey, Special Judge.

Action by Abraham Lozier against William Liggett and Martha E. Liggett for the possession of land. From a judgment for plaintiff, defendants appeal. Reversed.

John B. Coles and George B. Hall, for appellants. G. L. Downey and R. L. Davis, for appellee.

Coffey, J.

This was an action by the appellee against the appellants in the Ohio circuit court for the possession of real estate. The complaint in the cause consisted of two paragraphs. The court overruled the separate demurrer of the appellant William Liggett to each paragraph of the complaint, and he excepted. The court also sustained the separate demurrer of the appellant Martha E. Liggett to the first paragraph of the complaint, and overruled it as to the second paragraph, and she excepted. The correctness of these several rulings of the circuit court is called in question by the assignment of error in this court. In our opinion, the circuit court erred in overruling the demurrer of the appellant William Liggett to the first paragraph of the complaint. That paragraph contains no description of the land sought to be recovered. A complaint for the recovery of the possession of real estate, which does not contain a sufficient description of the land sought to be recovered, is bad on demurrer. Sections 1054, 5225, Rev. St. 1881; Gravel Road Co. v. Moss, 92 Ind. 119;Lenninger v. Wenrick, 98 Ind. 596. It is true that the appellee filed with his complaint, as an exhibit, a copy of a deed executed by the appellants to him for the land in controversy; but such deed, not being the foundation of the action, is no part of the complaint, and cannot be looked to in aid of its allegations. Huff v. City of Lafayette, 108 Ind. 14, 8 N. E. Rep. 701; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Huseman v. Sims, 104 Ind. 317, 4 N. E. Rep. 42; Jackson v. State, 103 Ind. 250, 2 N. E. Rep. 742. The second paragraph of the complaint proceeds upon the theory that the relation of landlord and tenant exists between the appellee and the appellant William Liggett. There are no allegations in this paragraph against the appellant Martha E. Liggett.

At the conclusion of the prayer for relief against the appellant William Liggett is found this language: “And the plaintiff makes Martha E. Liggett a defendant, as she has some pretended claim to said...