McKillip v. State

Citation111 N.E. 178,184 Ind. 331
Decision Date26 January 1916
Docket Number22,904
PartiesMcKillip v. State of Indiana
CourtSupreme Court of Indiana

From Howard Circuit Court; William C. Purdum, Judge.

Prosecution by the State of Indiana against John F. McKillip. From a judgment of conviction, the defendant appeals.

Reversed.

Blacklidge Wolf & Barnes, for appellant.

Evan B Stotsenburg, Attorney-General, Donald P. Strode, Horace M Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney and Wilbur T. Gruber, for the State.

OPINION

Erwin, J.

This was a prosecution for trespass. The facts disclosed by the record are, that in the year 1891 certain lands were conveyed by one James McKillip and wife, by warranty deed, to the trustees of the Church of Christ at Walnut Grove, in Howard County. It was insisted by appellant that by reason of certain provisions in the deed that the land had reverted to the heirs of the original owners of the lands. The church building erected on said lands ceased to be used for church purposes for more than a year, whereupon appellant, who was a son of the original grantors, moved some personal effects into said church building and took up his abode therein. The trustees of said church called upon him at the church and notified him to vacate the premises. Appellant notified them that under the conditions of the deed from his father to the trustees, he was the owner of the real estate in question, and that he would not surrender it to them. This prosecution followed.

Many alleged errors are assigned as causes why this judgment should be reversed. Without going into detail as to each alleged error it is sufficient to say that this case is in all respects similar to the case of Windsor v State (1859), 13 Ind. 375 (both involving the occupancy of church property). This court, by Worden, J., said in the case cited, "We do not think a criminal prosecution a proper mode of trying the title to real estate. A person without color of title, could not defeat a criminal prosecution for malicious trespass upon lands, by setting up title thereto in himself, but where he has a paper title, apparently valid on its face, and claims, in good faith, to be the owner, and is in possession, either by himself or others occupying by his direction, he can not be prosecuted criminally for a trespass committed thereon by him, to the damage of a third person, although such third person, in the end, may prove to have a better...

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