State ex rel. Schumacher v. Gramelspacher
| Decision Date | 06 January 1891 |
| Docket Number | 13,980 |
| Citation | 26 N.E. 81,126 Ind. 398 |
| Parties | The State, ex rel. Schumacher, Auditor, v. Gramelspacher et al |
| Court | Indiana Supreme Court |
From the Dubois Circuit Court.
The judgment is reversed, with instructions to restate its conclusions of law and to render judgment in favor of appellant against appellee Gramelspacher for the sum of $ 500, and in favor of the appellee Wertz.
J. E McCullough, J. H. Miller and B. Buettner, for appellant.
W. A Traylor and W. S. Hunter, for appellees.
This is an action by the State, on relation of Isadore Schumacher auditor of Dubois county, appellant, for the use of the Indiana University, against John Gramelspacher and Tobin Wertz.
It is alleged in the complaint that on the 14th day of July, 1883 the trustees of the Indiana University were the owners of certain described real estate in Dubois county; that on the said day the relator was auditor of said county, and as auditor sold said real estate to the defendants, at public auction, for the sum of $ 903, said sum being the full appraised value of said land, on the following terms: one-fourth cash, and the remaining three-fourths payable at the end of ten years, with interest at 7 per cent., payable annually in advance; that defendants paid the cash payment, and said auditor issued to them a certificate of purchase, and recorded said certificate in a book kept in his office for that purpose; that said defendants took immediate possession of said land under said sale and certificate, and have continued to hold, and now hold, the undisputed possession of said land; that at the time the defendants took possession of said land there were standing and growing thereon a large number of valuable trees, and a large amount of wood and timber, of the value of $ 2,000, and that since taking possession of the same said defendants have cut and removed all of said timber, wood, and trees, of the value of $ 2,000, without the consent of the trustees of the Indiana University, or any other person authorized to give such consent; that said defendants paid the interest due on the 14th day of July, 1884, but have failed and neglected to pay any interest since that time; that by failure to pay the amount of interest due July 14th, 1885, they forfeited said land, and that said interest and deferred payment are wholly unpaid. Prayer for judgment against defendants for the value of the timber and damage to the land.
Appellees filed a demurrer to the complaint, which was overruled and exceptions reserved, and the ruling is assigned as a cross-error.
The cause was put at issue by an answer of general denial, and submitted to the court for trial without the intervention of a jury, and on proper request of the appellant the court found the facts and stated its conclusions of law, which were in favor of the appellees. The appellant excepted to the conclusions of law, also filed a motion for a new trial, which was overruled. Errors are assigned that the court erred in its conclusions of law, and in overruling the motion for a new trial. The only errors discussed by appellant arise on the exceptions to the conclusions of law.
The facts found by the court are, in substance, as follows: The relator is, and for six years has been, auditor of Dubois county. On July 14th, 1883, after having given four weeks' notice of the time and place of sale by publication for four weeks successively in a newspaper published in Dubois county, Indiana, and by posting up printed notices thereof in three of the most public places in the township where the land is situated, and a like notice at the court-house door in the town of Jasper, in said county, thirty days before the day of sale, said auditor did, on the day last above named, and being the day mentioned in the notice, sell at public auction, at the door of the court-house in said county, to the defendants, Wertz and Gramelspacher, for the sum of $ 903, said real estate, describing it; that said purchasers paid in cash on day of sale $ 225.75, whereupon said auditor issued to them a certificate of purchase, setting out a copy of it, which certificate describes the real estate, states the fact of the sale and the terms of it, and follows with the condition that that the certificate was duly recorded in the auditor's office in a book kept for that purpose; that the treasurer of said county attended said sale; that said defendants, at the time of the purchase, paid the interest for one year in advance, and in December, 1884, paid the one year's interest due July 14th, 1884, and thereafter defendants failed to pay the interest on the unpaid purchase-money, and the same remains wholly unpaid; that, after the date of said sale, and in the years 1883, 1884 and 1885, the defendant Gramelspacher and his employees cut down and removed from said land timber, trees growing thereon of the value of $ 250, and committed unnecessary injury and waste to said land, amounting to that sum; that said land, at the time of said sale, was, and yet remains, unencumbered, uncultivated wood land.
There are statements in the finding as follows:
"Whether any one of the trustees of the Indiana University attended said sale, or whether said land had been appraised, is not shown by the evidence;" and "there being no evidence that the defendant Wertz cut any of said trees, or in any way participated in the cutting or removing of said timber, the court finds for the defendant Wertz on said issue."
These statements amount to nothing. If they relate to facts material to the issue the finding is the same as if it were silent in regard to them.
The court stated its conclusions of law in the nature of a finding, as follows:
"As a conclusion of law upon the foregoing facts the court finds that the plaintiff has not shown that the trustees of the Indiana University own said land, and therefore finds for the defendants." The tract of land in controversy and described in the complaint and certificate of purchase, is the east half of the southeast quarter of section 23, in township 2 south, of range 3 west, in Dubois county.
The decision of the question presented depends upon whether or not the courts of this State will take judicial knowledge of the title to this tract of land being in the State of Indiana, having been selected by the Governor of the State, and a patent issued to the State for the same, in pursuance of an act of Congress, approved February 23d, 1854. 10 U.S. Statutes at Large, p. 267.
It has been held by the Supreme Court of Illinois, in the case of Smith v. Stevens, 82 Ill. 554, that the court will take judicial notice that the United States was the proprietor of section 17, township 39 north, range 14 east, and that it granted the same to the State of Illinois, and that said section is in the county of Cook, in said State, and can by no possibility be anywhere else.
It is a well-established principle that courts will take judicial notice of the history of the country, and of the State. The history of the State, or of the country, like the law, will be investigated by the court from its own proper resources.
In Andrews v. Board, etc., 70 Ill. 65, it was held that the court would take judicial knowledge of the result of an election for the removal of a county-seat.
In the case of Hart v. State, 55 Ind. 599, it was held that courts would take notice of the different classes of notes and bills in circulation as money at a particular time.
In French v. Town of Barre, 58 Vt. 567, 5 A 568, it is held that courts will take judicial notice of the fact that a certain village is not incorporated, and in People, ex rel., v. Williams, 64 Cal. 87, 27 P. 939, it is held that courts will take judicial notice of the result of the census taken by the United States. In Williams v. State, 64 Ind. 553, it is held that courts will take judicial notice of the history of this State, and its topography and condition. Henthorn v. Doe, 1 Blackf. 157; Lewis v. Harris, 31 Ala. 689. I...
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