Milhon v. Brown

Decision Date09 July 1957
Docket NumberNo. 18837,18837
Citation143 N.E.2d 573,127 Ind.App. 694
PartiesZona V. MILHON, Appellant, v. Mary Katherine (Catherine) BROWN, Appellee.
CourtIndiana Appellate Court

Clinton H. Givan, Indianapolis, Charles H. Foley, Martinsville, for appellant.

Gilbert W. Butler, Martinsville, for appellee.

COOPER, Presiding Judge.

This is an appeal by the appellant from the judgment in a cause wherein the appellee filed a complaint in three paragraphs.

The appellant filed a motion for a separate trial on the third paragraph of complaint, which motion was sustained by the trial court.

The first paragraph of the appellee's complaint was to quiet title to the following-described real estate in Morgan County, Indiana:

'All of the Northwest quarter of Section 10, and all the South half of Section 3, Township 12 North Range 1 East, which lies East of White River, except 20 acres off the East side of the East fraction of said Northwest quarter Section 10, bounded on the North by White River and on the South by Martinsville and Mooresville State Road.'

Second paragraph of appellee's complaint was in ejectment and trespass. The appellant answered by general denials to each rhetorical paragraphs of the complaint, except as to rhetorical paragraph two of first paragraph of complaint, wherein the appellant asserted that he was the owner in fee simple of the land in Section 3 as herein set out:

'Part of the West half of Section 3, Township 12 North, Range 1 East, described as follows: Beginning at a stone marking the center of Section 3; thence following the center of a County road, North 1.00 chain; thence North 36 degrees West 1.30 chains; thence West 17.60 chains; thence North 33 degrees West 0.63 chains to the center of the Pennsylvania Railroad; thence following the center of said Railroad South 60 degrees 30 minutes West to the West line of Section 3; thence South following said West line of Section 3, to the Southwest corner of Section 3; thence East following the South line of Section 3, to the South half mile corner of Section 3, thence North to the place of beginning containing 145 acres, more or less,'

and that his title is superior to the claim or title of the plaintiff.

Thus, under the issues, only the title to the lands lying in Section 3 is in controversy.

The causes, among others, for which the new trial was asked, were that the verdict was not sustained by sufficient evidence and was contrary to law.

The evidence in the record shows that at the beginning of the trial there was a certain stipulation made by the parties concerning various conveyances made to 98.76 acres of land in Morgan County, the same being described in the stipulation as, all the northwest quarter east of White River, excepting twenty acres off of the East side of the East fraction of the Northwest Quarter bounded on the North by White River and on the South by the Martinsville and Mooresville road. There is no direct reference in the stipulation as to any land in either Section 10 or Section 3 as alleged in the appellee's complaint. There were no exhibits or deeds put in evidence as to her title thereto. The stipulation reveals that the first time the appellee held title to the real estate hereinabove described in the stipulation was on November 29, 1946, when Giles M. Dickson and Elizabeth M. Dickson, husband and wife conveyed to her the real estate described in the stipulation, and, thereafter, on February 21, 1947, the appellee reconveyed to the said Giles M. Dickson and Elizabeth M. Dickson, husband and wife, the same real estate, and thereafter after the death of Giles M. Dickson on February 8, 1949, his widow conveyed to Myra Craddick, Trustee to reconvey the same real estate to Elizabeth M. Dickson and Mary Catherine Brown, jointly, with full and complete right of survivorship, and that said deed was recorded on February 11, 1949, in the office of the Recorder of Morgan County.

The record shows that appellee, on direct examination, in testifying as to the physical boundaries of the farm, said that she understood the accepted boundaries on the north was the river.

On cross-examination, however, the appellee testified that she first became interested in the land in controversy in 1948; that she was claiming ownership in the acreage described in the deed.

That the appellee was not claiming any land in Section 3 is shown by the following pertinent questions propounded to the appellee and her response thereto:

'Q. Do you have any knowledge at all as to the section lines located on that land, as to where they are? A. All I have to go by is the deed.

'Q. Well, your deed does not call for any land in Section 3? A. No, sir, it does not.

'Q. So, if you went by the deed you would not be claiming any land in Section 3? A. No.

'Q. You are claiming by the deed? A. I am not claiming any land in Section 3.

'Q. You are not claiming any land is Section 3? A. No, sir.

'Q. Do you claim any land in Section 4? A. No, sir.

'Q. Do you claim any land in Section 8? A. No, sir.

'Q. All you are claiming is in Section 10? A. That is right.'

There was no evidence from any of appellee's witnesses or from any other witness from which it could be found or reasonably inferred she owned or claimed any interest in any real estate in Section 3. In fact her own evidence heretofore set out indicates she claimed no such interest.

Thus, it is apparent that appellee has failed to sustain the burden of proof that she is the owner of the record title to any land whatsoever in Section 3, as averred in paragraphs No. 1 and 2 of her complaint.

In an action to quiet title to real estate the plaintiff must prevail on the strength of his own title and the failure of the defendant to establish title to the involved real estate, as is the situation in this case, furnishes no ground for recovery by the plaintiff. Hughes v. Cook, Ind.App. 1955, 130 N.E.2d 330, 333; L. & G. Realty & Const. Co. v. City of Indianapolis, Ind.App.1957, 139 N.E.2d 580. For additional authorities, see West Ind. Digest, Vol. 23, page 380.

As we have stated, the appellee, upon the record before us, failed to establish a record title to any lands in Section 3 as averred and described...

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4 cases
  • Fraley v. Minger, 69S01-0308-CV-387.
    • United States
    • Supreme Court of Indiana
    • June 20, 2005
    ...affirmatively upon the asserter who must adduce proof which is strict, clear, positive, and unequivocal."); Milhon v. Brown, 127 Ind.App. 694, 700, 143 N.E.2d 573, 576 (1957) (Adverse possession "must be strictly proved" and supported by "competent and substantial evidence."); Coal Creek Co......
  • Piel v. Dewitt, 2--1274A303
    • United States
    • Court of Appeals of Indiana
    • July 21, 1976
    ...See: IC 1971, 32--1--20--1 (Burns Code Ed.); Triplett v. Triplett (1963), 135 Ind.App. 302, 193 N.E.2d 662; Milhon v. Brown (1957), 127 Ind.App. 694, 143 N.E.2d 573, rehearing denied, 127 Ind.App. 694, 145 N.E.2d 307; Cooper v. Tarpley (1942), 112 Ind.App. 1, 41 N.E.2d must be affirmed. If ......
  • Scoville v. Hawkins, 19043
    • United States
    • Court of Appeals of Indiana
    • June 17, 1959
    ...have record title to the west half. Record title is the highest evidence of ownership and is not easily defeated. Milhon v. Brown, 1957, 127 And.App. 694, 143 N.E.2d 573, 145 N.E.2d 307; Norling v. Bailey, 1951, 121 Ind.App. 457, 98 N.E.2d 513, 99 N.E.2d Appellants, in the fall of 1944, bui......
  • Milhon v. Brown
    • United States
    • Court of Appeals of Indiana
    • October 11, 1957
    .... Page 307. 145 N.E.2d 307. 127 Ind.App. 694. Zona V. MILHON, Appellant,. v. Mary Katherine (Catherine) BROWN, Appellee. No. 18837. Appellate Court of Indiana, In Banc. Oct. 11, 1957.         [127 Ind.App. 695] Clinton H. Givan, Indianapolis, Charles H. Foley, Martinsville, for appellant.         Gilbert W. Butler, Martinsville, for appellee.         [127 Ind.App. 701] COOPER, Presiding Judge. ......

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