Roots v. Beck
| Decision Date | 05 January 1887 |
| Docket Number | 12,879 |
| Citation | 9 N.E. 698,109 Ind. 472 |
| Parties | Roots v. Beck et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 26, 1887.
From the Fayette Circuit Court.
The judgment is affirmed, with costs.
B. F Claypool, J. H. Claypool, L. W. Florea and G. C. Florea, for appellant.
R Conner, H. L. Frost, H. C. Fox and J. F. Robbins, for appellees.
The appellant's argument for a reversal of the judgment below relates exclusively to the propriety of certain instructions given by the court at the trial.
The action was by Abraham B. Conwell against Francis M. Roots, the first paragraph of the complaint being in ejectment to recover the possession of certain described real estate; the second was to quiet the title to the same land; while a third paragraph was trespass, to recover damages for alleged injuries to the land in dispute.
The defendant below answered specially to the first paragraph of complaint, that he was the owner and in possession of part of the real estate described, and that as to the residue he disclaimed any ownership or possession. To the second and third paragraphs the general issue was pleaded. The plaintiff closed the issues by replying a general denial to the defendant's special answer to the first paragraph of the complaint.
Having stated the issues substantially as above, the court, in its fifth instruction, told the jury that the plaintiff having by his reply denied the matters set up in the first paragraph of the defendant's answer, the defendant was thereby put upon the proof of the affirmative matter set up in such answer.
This instruction is assailed as erroneous, in that, as the appellant contends, it instructs the jury that the burden of proof was upon the defendant, whereas it is said, in ejectment, the plaintiff must recover upon the strength of his own title, and hence has the burden of showing title in himself before he can recover even as against a defendant in possession without title.
That the proposition contended for is, in the abstract, correct, results from the provisions of section 1057, R. S. 1881, as well as from an often reiterated common law rule. Standing alone, the instruction in question might have been misunderstood, but read in connection with the seventh and tenth, we do not think it could have misled the jury.
In the seventh instruction, the jury were told explicitly, that the first paragraph of the answer to the first paragraph of the complaint put the plaintiff upon the proof of all the material allegations in that paragraph of complaint as were not specially therein admitted, and that to entitle the plaintiff to recover he must prove the material allegations of his complaint, not specially admitted, by a preponderance of the evidence.
The tenth instruction, given at the appellant's request, told the jury that the plaintiff must recover on the strength of his own title, that the burden of proof was upon him to show title to the land, and a right of possession, and that if the plaintiff failed to show title in himself, it would make no difference whether the defendant had title or not.
Taking the instructions all together, we can hardly conceive how the jury could have failed to realize that the necessity was upon the plaintiff, to make out his title and right of possession by affirmative proof.
There was a sense in which the fifth instruction was not erroneous, as applied to the defendant's special answer. In so far as that answer was a plea in confession and avoidance, admitting the plaintiff's prima facie case, and avoiding it by affirmative matter, it was correct to say that the defendant was put to the proof of such affirmative matter. This, we think, is the fair interpretation of the charge. Thus interpreted, it was not erroneous, taken in connection with those which followed.
The eighteenth instruction is said to contain an erroneous statement of the law. It was as follows:
"Under the statute of this State twenty years of continuous exclusive, uninterrupted, and adverse possession of real estate, not only bars a right of action therefor,...
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