Stanley v. Holliday

• Citation: 130 Ind. 464, 30 N.E. 634
• Case Date: March 09, 1892
• Court: Supreme Court of Indiana

130 Ind. 464
30 N.E. 634

STANLEY et al.
v.
HOLLIDAY.

Supreme Court of Indiana.

March 9, 1892.

Appeal from circuit court, Lake county; WILLIAM JOHNSON, Judge.

Suit to quiet title to land by Lavina Holliday against James R. Stanley and another. Plaintiff had decree, and defendants appeal. Affirmed.

Thos. J. Wood and Martin Wood, for appellants. H. A. Gillett, for appellee.

OLDS, J.

The appellee brought this suit against the appellants to quiet the title to the real estate describes in the complaint. The first alleged error discussed is the ruling of the court in overruling appellant's demurrer to the second paragraph of the complaint. It is suggested by appellee's counsel that no such question is presented, for the reason that the assignment of error, being the second assignment of error purporting to raise this question, was indorsed upon the record more than one year after the filing of the record, and the first assignment indorsed thereon in this court. The assignment of record appears to have been properly made, and there is nothing in the record to show that it was not made at the same time of the first, except it may be that they are separate and distinct assignments, each being signed by the counsel for the appellant. We do not consider this objection to the assignment not having been made in time, for the reason that we have examined the paragraph of complaint, and are of the opinion there is nothing in the alleged error. The objection made to the paragraph is that it seeks to quiet an equitable title, and that it alleges the appellee “is the owner by complete equitable title, and entitled to the possession of the” real estate, (describing it;) and it is contended that, while it is sufficient in a complaint to allege that the plaintiff is the owner in fee-simple, it is not sufficient to aver a complete equitable title; that such averment is a mere conclusion, and facts must be alleged showing the plaintiff to be the complete equitable owner, and entitled to possession, instead of averring the same to be the fact. It is conceded that in Burt v. Bowles, 69 Ind. 1, such averments were held to be sufficient in a complaint for ejectment; but the logic of this decision is questioned, and it is contended that the rule should not be extended to pleadings in actions to quiet title. The averment in the paragraph rendered it good, at least as against a demurrer. The decision in the case of Burt v. Bowles, supra, has been adhered to in subsequent...