Lindley v. Dakin

• Decision Date: 12 December 1859
• Parties: Lindley v. Dakin
• Court: Indiana Supreme Court

13 Ind. 339

Lindley v. Dakin

Supreme Court of Indiana

December 12, 1859

From the Morgan Circuit Court.

The judgment is affirmed with costs.

W. R Harrison, J. W. Gordon, and A. H. Conner, for appellant.

D M'Donald and A. G. Porter, for appellee.

OPINION

Perkins J.

Suit upon the covenants in a deed conveying real estate. Final judgment for the defendant.

It is urged, as one ground for the reversal of the judgment, that it wrongly embraces costs. But no motion for a taxation of costs was made below; the Court was not asked to make a ruling upon the subject, and there is, consequently, none to be complained of here.

Again, it is said the judgment is wrong upon the evidence. But the record does not purport to bring the evidence in the cause before this Court. It states that all the testimony is embodied in it. Testimony is not synonymous with evidence. It is but a species, a class, or kind of evidence. Testimony is the evidence given by witnesses. Evidence is whatever may be given to the jury as tending to prove a case. It includes the testimony of witnesses, documents, admissions of parties, &c.

The defendant answered to the breach of covenant as to possession, that at the time he sold the property to the plaintiff, it was in the possession of other persons; that the purchaser knew the fact at the time of his purchase, and the extent of their rights of possession; and that an agreement was made between the parties, that the seller was to give possession at a future time, when the then possessors could be removed.

The Court overruled a demurrer to this answer.

Pending the cause, the then possessors vacated the property, so that the possession came to the plaintiff. This fact was answered, puis darien continuance, and the answer held valid.

The revised code contains this provision:

"Sec. 7. A conveyance of real estate, or of any interest therein, by a landlord, shall be valid without the attornment of the tenant. But the payment of rent by the tenant to the grantor, at any time before notice of sale, given to said tenant, shall be good against the grantee." 2 R. S. p. 243.

Attornment is the acknowledgment by a tenant of a new landlord on the alienation of land, and an agreement to become tenant to the purchaser. Whart. Law Dic. 66.--1 Bouv. Law Dic. 151.

It thus appears that occupancy by a tenant, of property sold, where the fact and the title of the tenant are known at...