Philbin v. Carr

• Decision Date: 15 February 1921
• Docket Number: No. 9825.,9825.
• Citation: 129 N.E. 706,75 Ind.App. 560
• Parties: PHILBIN et al. v. CARR et al.
• Court: Indiana Appellate Court

75 Ind.App. 560

129 N.E. 706

PHILBIN et al.

v.CARR et al.

No. 9825.

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1921.

On petition for rehearing. Rehearing denied, and former opinion adhered to.

*706For former opinion, see 129 N. E. 19.

DAUSMAN, P. J.

In her petition for rehearing the appellee contends that the statutory definitions of color of title are not applicable to the case at bar. The argument is that those sections of the statute which define color of title were originally part of an act for the relief of occupying claimants by enabling them to recover for taxes paid, and for valuable improvements made, on the land in controversy, where they were unable to hold the land as against the true owner, thereby softening the rigors of the common law. From that argument appellee's counsel conclude that the statutory definitions are limited as to their application to actions in ejectment. We find no fault with the statements made in the argument, but we cannot concur in the conclusion. In the revision of 1881 those sections were taken from the earlier act and were inserted in, and became a part of, the act entitled “An act concerning proceedings in civil cases” (Laws 1881, p. 240), which later act is commonly known as the Revised Civil Code. This later act consists of 867 sections and covers a wide range of subjects, including ejectment and quiet title. Following the subjects of ejectment and quiet title, come the definitions. In this connection the statute provides that after the question of title has been litigated and adjudicated in the “proper” or “main” action, an occupying claimant who has been defeated in the main action, may file his complaint (thereby instituting a kind of secondary action) to recover the value of the improvements made in good faith under color of title. Sections 1121, 1124, Burns' Ann. St. 1914.

We are firmly of the opinion that it was the intention of the Legislature that said statutory definitions should be applicable in every case wherein the question of title is in the issue, regardless of the form of the action. We conceive that it is not the policy of the Legislature and the courts to apply one rule in favor of honest claimants who mistakenly, but in good faith, have taken possession of land not their own, paid the taxes, and made valuable and lasting improvements thereon, and a different and more liberal rule in favor of those who can offer no evidence of possession other than acts of...