Swaynie v. Vess
| Decision Date | 27 November 1883 |
| Docket Number | 10,782 |
| Citation | 91 Ind. 584 |
| Parties | Swaynie v. Vess |
| Court | Indiana Supreme Court |
From the Superior Court of Tippecanoe county.
The judgment is affirmed, with costs.
W. H Bryan, G. O. Behm and A. O. Behm, for appellant.
C. E Lake and J. S. McMillen, for appellee.
Action by appellee as lessee, to reform a lease and recover the possession of the leased premises. Trial, and judgment for appellee. The only error assigned in this court is the overruling of the appellant's demurrer to the complaint. The only objections urged against the complaint are that it does not contain the averments, first, that the plaintiff is entitled to the possession of the premises, and, second, that the defendant unlawfully keeps him out of possession. Section 1054, R. S. 1881, which is the same as section 595, code of 1852, provides that in an action of ejectment the plaintiff shall state in the complaint that he is entitled to the possession of the premises, the interest he claims therein, and that the defendant unlawfully keeps him out of possession, etc. The provisions of this section must be complied with to render the complaint good as against a demurrer, but it is not necessary to use the exact words of the statute. It will be sufficient if words of similar import are used, or the averments of the complaint be such as to show the plaintiff's right to such possession, and the defendant's unlawful detention. Knight v. McDonald, 37 Ind. 463; Smith v. Kyler, 74 Ind. 575; Lovely v. Speisshoffer, 85 Ind. 454; Vance v. Schroyer, 82 Ind. 114.
The case of Vance v. Schroyer, 77 Ind. 501, recognized the doctrine of the above cases and the rule we have announced in this case, and is not authority for appellant's position.
It appears by the averments of the complaint, that appellant, as the owner of certain land, leased it to appellee in January 1882, by a written lease, for a term of five years from the first day of November, 1882. Under a stipulation of the lease appellee had the right, and was allowed, to sow sixteen acres of wheat in September of that year. On the 1st day of November appellee complied with the provisions of the lease, tendered the rental, and demanded the possession of the land. Appellant refused the money, and refused to surrender possession of the premises to the plaintiff, and informed him that she would not then or thereafter abide by, and perform, the conditions of the...
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Pittsburg, C., C. & St. L. Ry. Co. v. O'Brien
...Vance v. Schroyer, supra; Levi v. Engle, supra; Mansur v. Streight, supra; Simmons v. Lindley, supra; Miller v. Shriner, supra; Swaynie v. Vess, 91 Ind. 584. In an action for possession of real estate, the burden is upon the plaintiff to establish by affirmative proof his title and right to......
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Pilotte v. Brummett
...same effect, the most recent one being McClellan v. Beatty (1944), 115 Ind.App. 173, 53 N.E.2d 1013, 55 N.E.2d 327. Also see, Swaynie v. Vess (1883), 91 Ind. 584; Wilson v. Jinks (1917), 63 Ind.App. 615, 115 N.E. 67; Welborn v. Kimmerling (1909), 46 Ind.App. 98, 89 N.E. Typical is Welborn v......
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Pittsburg, Cincinnati, Chicago & St. Louis R. W. Co. v. O'Brien
...v. Schroyer, supra; Levi v. Engle, Admr., supra; Mansur v. Streight, supra; Simmons v. Lindley, supra; Miller v. Shriner, supra; Swaynie v. Vess, 91 Ind. 584. In action for possession of real estate the burden is upon the plaintiff to establish by affirmative proof his title and right to po......
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Mansur v. Streight
...in actions like this is settled. Miller v. Shriner, 87 Ind. 141;McCarnan v. Cochran, 57 Ind. 166;Levi v. Engle, 91 Ind. 330. In Swaynie v. Vess, 91 Ind. 584, it was held that while such averment was necessary, it was not required to be made in the exact words of the statute. If the averment......