The Cincinnati, Indianapolis, St. Louis And Chicago Railway Co. v. Smith

• Decision Date: 18 March 1891
• Docket Number: 14,716
• Citation: 26 N.E. 1009,127 Ind. 461
• Parties: The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Smith
• Court: Indiana Supreme Court

26 N.E. 1009

127 Ind. 461

The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Smith

No. 14,716

Supreme Court of Indiana

March 18, 1891

From the Decatur Circuit Court.

Judgment affirmed.

J. K Ewing and C. Ewing, for appellant.

J. D Miller and F. E. Gavin, for appellee.

Coffey J. Miller, J., took no part in the decision of this cause.

OPINION

Coffey, J.

This was an action by the appellee against the appellant to recover the possession of real estate.

The complaint is in the statutory form usually employed in such actions.

The appellant filed a counter-claim alleging, in substance, that it owned the land in controversy, having acquired title thereto by deed from Henry L. Burk on the 18th day of December, 1852; that said land consists of a strip deeded for the right of way for a railroad; that the appellant and its grantors successively took and held possession of said right of way by constructing a railroad thereon, and by running daily a large number of trains thereon with engines, etc., giving thereby notice of their ownership continuously, but that its deed had never been recorded.

The second paragraph of the appellee's answer to the counter-claim, averred that the deed of Burk for a right of way, described in said counter-claim, conveyed a strip of land eighty feet wide; that the company took possession of forty feet only, and fenced the same in and constructed its road thereon, leaving the remaining forty feet in the possession of said Burk who continued to cultivate the same; that said deed was never recorded; that the land described in the complaint is land of which the appellant never took possession, and that the appellee, without any notice of said deed, and without any notice or knowledge that the appellant owned or made any claim thereto, purchased the same for a valuable consideration, and took a conveyance therefor.

The appellant filed a reply in two paragraphs. The first paragraph alleged that the appellee at the time he purchased the real estate in controversy, as set out in said answer, had actual knowledge of the existence of a right of way owned by the appellant, and took his deed thereto with a written stipulation contained therein that the title so conveyed was subject to the right of way held by the appellant.

The second paragraph of the reply was a general denial.

The court sustained a demurrer to the first paragraph of the reply and appellant excepted.

Some days after this ruling the appellant withdrew the second paragraph of the reply, and appellee had judgment on his answer to the cross-bill.

The assignment of error calls in question the correctness of the ruling of the circuit court in sustaining the demurrer to the first paragraph of the reply to the second paragraph of the answer to the counter-claim filed by the appellant.

It is insisted by the appellant that the second paragraph of the reply negatived every allegation found in the answer which tended to show that the appellee purchased the land in dispute without notice of appellant's claim, and that the recital in the deed to the appellee was sufficient to put him on inquiry, by means of which he could have ascertained the extent of the appellant's claim.

This contention is met by the claim on the part of the appellee that the first paragraph of the reply was nothing more than an argumentative denial, and as there was a direct denial pleaded in the second paragraph of the reply, there was no available error committed in sustaining the demurrer, and that the appellant could not convert the ruling into available error by subsequently withdrawing...