Mitchell v. Brawley
| Decision Date | 11 January 1895 |
| Docket Number | 17,185 |
| Citation | 39 N.E. 497,140 Ind. 216 |
| Parties | Mitchell v. Brawley |
| Court | Indiana Supreme Court |
From the Huntington Circuit Court.
The judgment is reversed, with instructions to award a venire de novo.
T. G Smith, for appellant.
J. R Day, M. L. Spencer and W. A. Branyan, for appellee.
This is an action for the possession of real estate, brought by appellee against appellant.
There was a special finding of the facts and conclusions of law stated by the court, to which exception was taken at the time.
The assignment of error calls in question the correctness of the conclusions of law.
The facts found by the court were substantially as follows:
That one Mitchell was the owner of a five acre tract of land in Huntington county; that in March, 1873, he conveyed 3 70/100 acres off the north end of said tract to Jemima Van Dolson which is designated as tract "B," and the part retained as tract "A"; that afterwards, in the year 1874, and while Jemima Van Dolson owned said tract "B," and said Mitchell owned said tract "A," Mr. Van Dolson met said Mitchell on said land, and, by reason of the dissatisfaction of Mitchell about the division line between said tracts "A" and "B" coming too near his house, he and Mr. Van Dolson agreed to a different division line and marked it out by setting stakes at each end, the stake at the east side was 23 feet north and at the west side 37 1/2 feet north of the dividing line, described in the deed from Mitchell to Jemima Van Dolson, which strip is the real estate in controversy.
Said Mitchell and Mr. Van Dolson, jointly caused a fence to be built on such agreed line in the year 1874, which fence has been there ever since, and was there when the plaintiff Brawley purchased tract "B"; that Mitchell, by reason of such agreement, and acting upon it, erected a barn nearly all on this strip, and planted and cultivated trees, vines and shrubs upon said strip, at an expense and outlay of one hundred dollars, all of which yet remains thereon, and the same was used and occupied by him during his lifetime, and the defendant, his grantee and widow, has, since his death up to the present time, used the same in common with tract "A"; that the plaintiff afterwards became the grantee of tract "B" by conveyance from Van Dolson; that when the plaintiff purchased tract "B," said fence, buildings, fruit trees and shrubs were all so located, and defendant was in possession of said real estate in controversy; that defendant has also kept up the fences around said disputed strip, and maintained side-walks along the same ever since said partition fence was built; that the plaintiff did not claim to own any land south of said fence until shortly before the commencement of this action.
The court, upon the facts found, stated as its conclusion of law that the plaintiff is the owner of, and entitled to the possession of, the real estate described in the complaint, and should have judgment for the possession thereof.
Section 1054, R. S. 1881, section 1066, R. S. 1894, under which this action was brought, provides that the complaint shall state that he is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.
It is averred in the complaint that plaintiff is the owner of, and entitled to the immediate possession of, the real estate described.
The finding on this issue is that the "plaintiff became the grantee of tract 'B' by conveyance from Van Dolson," and "that the plaintiff purchased tract 'B,'" etc.
Whether the conveyance in which appellee's name appeared as grantee was executed by Jemima...
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