Ludwig v. Petrie

• Citation: 70 N.E. 280,32 Ind.App. 550
• Decision Date: 10 March 1904
• Docket Number: 4,697
• Parties: LUDWIG v. PETRIE ET AL
• Court: Indiana Appellate Court

70 N.E. 280

32 Ind.App. 550

LUDWIG v. PETRIE ET AL

No. 4,697

Court of Appeals of Indiana

March 10, 1904

From Huntington Circuit Court; J. C. Branyan, Judge.

Action by John Ludwig against Margaret Petrie and others. From a judgment for defendants, plaintiff appeals.

Reversed.

U. S Lesh and Eben Lesh, for appellant.

J. S Branyan, Milo Feightner and G. W. Stultz, for appellees.

OPINION

HENLEY, C. J.

Action by appellant for damages growing out of a breach of warranty in the deed of conveyance of certain real estate purchased by him of appellee. The complaint was in two paragraphs. The first paragraph of complaint contains averments covering the execution and delivery of the deed, the payment of the purchase price, the warranty covering thirty-five and seventy-hundredths acres of land, the failure of the title to six and seventy-hundredths acres of the land so conveyed and warranted, and the eviction of appellant therefrom by one holding the paramount title. The second paragraph of complaint, in addition to the averments which appear in the first paragraph, contains the following: That at the time of the purchase of the real estate appellee orally represented that a certain rail fence running south from the Maple Grove gravel road, near the buildings on the land conveyed, was the line fence, and formed the western boundary of said land that such representations were false and fraudulent, and were falsely and fraudulently made, and that appellant relied upon and believed them to be true; that thereafter, and after appellant had purchased the real estate so pointed out to him, a survey was had of said land, and said line fence was removed a sufficient distance east to dispossess appellant of six acres of land. The material part of the deed, which was made a part of each paragraph of complaint, is as follows: "This indenture witnesseth that Margaret Petrie and Jacob Petrie, her husband, of Huntington county, Indiana, convey and warrant to John Ludwig of Huntington county, Indiana, for the sum of $ 3,500, the following real estate in Huntington county, Indiana, to wit The following tract of land except forty-one acres off the west side thereof, viz.: that part of the reserve of ten sections at the banks of the Wabash river, granted by the United States to John B. Richardville, which is described as follows: Being north of the Wabash & Erie Canal and between tracts numbered ten and eleven, in the division of said reserve, and known as Carnot tract, containing eighty acres, except three and thirty-hundredths acres in the north part of said tract conveyed by Snap Richardson to John Roche by a deed dated December 21, 1852, and recorded in book H, page 488, of the records of Huntington county, Indiana. Said forty-one acres to be laid off by a line running from the Maple Grove road south along the center of the lane to a point four rods south of the barn on said farm, thence east to a point from which a line run to the south line of the tract will leave forty-one acres on the west of the line so run, being in township twenty-eight, range nine east." An answer of general denial filed by appellee made the issue upon which the case was tried. The trial resulted in a judgment against...