Reed v. Kalfsbeck

• Decision Date: 01 December 1896
• Court: Indiana Supreme Court
• Parties: REED v. KALFSBECK et al.

147 Ind. 148
45 N.E. 476

REED
v.
KALFSBECK et al.¹

Supreme Court of Indiana.

Dec. 1, 1896.

Appeal from circuit court, White county; T. F. Palmer, Judge.

Action by Colin M. Reed against Detze Kalfsbeck and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Reynolds & Sills, for appellant. Chas. C. Spencer, R. J. Million, and R. P. Davidson, for appellees.

JORDAN, C. J.

Appellant institutes this action to quiet his title to certain real estate situated in White county, Ind. He alleged in his complaint that he was the owner in fee simple of the lands described, and that the defendant's claim of title was “unfounded,” and a cloud upon his title, and he demanded that his title be quieted, and that appellee's claim be adjudged null and void. Appellee answered the complaint by a general denial,

[45 N.E. 477]

and under the issues thus joined a trial was had, and there was a special finding of facts, and as a conclusion of law the court found that appellant was not entitled to have the title of the real estate in dispute quieted against appellee, and rendered judgment accordingly. The error assigned by appellant in this court is based upon the court's conclusion upon the special finding. The facts in this case apparently show a chain of title to the land in controversy to Adaline Clark, William Wilie, and Colin M. Reed. That before the commencement of this action these parties died, leaving the appellant and certain other persons as their heirs at law, and in 1895 these other heirs conveyed their interest to appellant. In June, 1875, one Fuller conveyed these lands to one Bushnell, but Fuller, in 1859, had conveyed the same real estate to John L. King, a remote grantor of appellant, and this latter deed was recorded in 1860; consequently Fuller's deed conveyed no title or interest to Bushnell. In November, 1877, Bushnell attempted by deed to convey the lands to William Turpie, and subsequently, in 1879, the latter attempted to convey them to Alexander S. Brown. This deed to Brown was recorded November 8, 1879. For the years of 1882, 1883, and 1884, the real estate in question was, according to the tax duplicate in the office of the county auditor, assessed for taxation in the name of Alexander S. Brown, and from said duplicate he appeared to be the owner thereof during the aforesaid mentioned years. In 1863 the remote grantors of appellant, then owners of the land, quit paying taxes thereon, and took no action concerning the same until a short time before the beginning of this action. On September 3, 1884, one David Byroad, the owner of lands which would be benefited by drainage, but which could not be accomplished in the best and cheapest manner without affecting other real estate, applied to the circuit court of White county for the construction of a public ditch or drain under the statutes then in force. That such proceedings were had in accordance with said statutes that on September 30, 1884, the White circuit court referred Byroad's petition to the commissioners of drainage. These commissioners made their report to the court on November 29, 1884, but upon a hearing of objections upon the part of certain landowners this report was referred back to the commissioners, who subsequently, on May 8, 1885, made another report. In this report the commissioners assessed benefits to several tracts of land in the name of Alexander S. Brown, and among the same was the tract in controversy, upon which the benefits were assessed by reason of said drainage at $75. After making this report, on May 26, 1885, the court made an order approving the benefits mentioned in the report, and ordered that the ditch be established. These proceedings appear to be substantially in compliance with the statute relative to drainage of lands. On September 6, 1886, the commissioner of drainage, in the name of the state of Indiana, commenced an action in the White circuit court against Alexander Brown to enforce the collection of the $75 so assessed as benefits against the land in dispute. Such proceedings were had in said action that the defendant Brown, who it appears had been duly served with notice of said action, was defaulted, and there was a finding by the court that there was due the state of Indiana, for the use of the commissioner of drainage, the sum of $75 upon said assessment, and the further sum of $12 for attorney's fees, and that the same was a lien upon the real estate now in suit, and the court ordered it to be sold in payment and satisfaction of this lien. Under and by virtue of this decree the sheriff of White county, after duly advertising the time and place of sale, sold said land on July 2, 1887, at public auction, to one Jitce Kalfsbeck, for $25...