Sullenger v. Baecher

• Decision Date: 16 April 1913
• Docket Number: No. 7,842.,7,842.
• Citation: 55 Ind.App. 365,101 N.E. 517
• Parties: SULLENGER v. BAECHER.
• Court: Indiana Appellate Court

55 Ind.App. 365

101 N.E. 517

SULLENGER

v.BAECHER.

No. 7,842.

Appellate Court of Indiana, Division No. 2.

April 16, 1913.

Appeal from Circuit Court, Knox County; Wm. H. Hill, Special Judge.

Action by Engelbert A. Baecher against Mary Sullenger. From a judgment for plaintiff, defendant appeals. Reversed, with directions to grant a new trial.

B. M. Willoughby and James M. House, both of Vincennes, for appellant. Samuel Wardell Williams, of Vincennes, and Robert Gabriel Cauthorn, of Seattle, Wash., for appellee.

LAIRY, J.

Appellee recovered a judgment in the Knox circuit court quieting his title as against appellant to a certain tract of land in Knox county, Ind. The only error assigned on appeal is the action of the trial court in overruling appellant's motion for a new trial.

For some time prior to the year 1904 Henry L. Wheatley was the owner of the real estate in controversy, and was in possession of the same. On February 11, 1907, appellee purchased the land at a sale for taxes assessed against Henry L. Wheatley for the year 1906 and previous years, and received a certificate therefor. On the 12th day of February, 1909, the auditor of Knox county, upon presentation of this certificate, executed and delivered to appellee a tax deed, upon which appellee bases his claim of title to the land involved in this suit. At the time this action was brought appellant was in possession of the land claiming title thereto as heir of her father, Henry C. Mooney, and by virtue of an unrecorded deed executed to him by the trustee in the bankruptcy proceeding of Henry L. Wheatley.

The first specification of appellant's motion for a new trial challenges the sufficiency of the evidence to sustain the verdict. Appellant's contention is that the tax deed upon which appellee relies is not sufficient to convey title, for the reason that the description contained in the records made for taxation purposes is so uncertain, indefinite, and imperfect that no valid deed could be based thereon.

[1] It appears from the evidence that survey No. 17, of which the land in controversy formed a part, contained about 200 acres of land. The land which appellee purchased at the tax sale is decribed in the entry for taxation on the tax duplicate of Knox county as follows: “Henry L. Wheatley Part Lot 17, Township 1, Range 10, 100 acres.” The description in the notice of tax sale is in the words and figures following: “Henry L. Wheatley p. lot 17, tp. 1, range 10, 100 acres.” In the delinquent list returned by the auditor the description is: “Pt. lot 17, Township 1, Range 10, acres 100. Johnson Township, Knox County, Indiana.” In the tax sale record the land is described as follows: “All survey 17 Township 1, Range 10, 100 acres, Johnson Township.” And in the tax certificate upon which the deed purports to be issued the description reads: “Part of Sur. 17, Town one Range Ten containing 100 acres in Johnson Township, Knox County, Indiana.” It is apparent we think that none of these descriptions were sufficient to indicate what part of survey 17 was covered by the description. No surveyor from this description alone would be able to locate and identify the particular tract intended, for the reason that 100 acres of land laid off any place within the survey would meet and comply with all of the terms of the description. Under the decisions of the courts of this state, the deed based upon these descriptions was wholly ineffective to convey title. Cooper v. Jackson, 71 Ind. 244;Ball v. Barnes, 123...