Uhl v. Moorhouse
| Decision Date | 26 April 1894 |
| Citation | 137 Ind. 445,37 N.E. 366 |
| Parties | UHL v. MOORHOUSE, County Treasurer, et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, White county; J. M. La Rue, Special Judge.
Action by William E. Uhl against Hiram A. B. Moorhouse, as county treasurer, and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Guthrie & Bushnell and E. B. Sellers, for appellant. Hartman & Hamelle, for appellees.
The appellant sued to enjoin the enforcement of an assessment for the construction of a public drain through his lands. The only defect in the drainage proceeding alleged as a cause for injunction was that the owner of the lands, at the time of said proceeding, was not a party to, and had no notice of, the proceeding. It is the rule of this case that it was necessary to the validity of said assessment that notice should have been given to the actual owner of said lands. McCollum v. Uhl, 128 Ind. 304, 27 N. E. 152, 725. In the trial it was admitted that in 1872 one George Uhl was the owner of the lands, by proper deed of record. The proceeding to establish the drain was commenced in December, 1878, and the order establishing it was made in June, 1879. The notice of the proceeding, as given with reference to this land, was to Elizabeth Reed and others named, heirs of Alfred Reed. The appellant claims title through a sale for taxes delinquent in the name of said Reed heirs, a foreclosure of the tax lien by the purchaser, and a purchase by him at the sheriff's sale upon such foreclosure. It appears that, in said foreclosure proceeding, George Uhl and the Reed heirs were made parties. George Uhl, on behalf of the appellees, testified, without objection, that he had owned the tract in question; that he had sold the same to Alfred Reed in the year 1873; and that Alfred Reed died in October, 1873. Over the objection and exception of the appellant, he was permitted to testify that he had made a deed to Alfred Reed, his wife joining therein; that, as auditor of the county, he had made a transfer of the land for taxation from his own name to that of Alfred Reed; that it remained on the tax duplicate in the name of Alfred Reed, or Alfred Reed's heirs, from the time of said deed up to the time of the sale for delinquent taxes; and that, from the time of executing said deed, he had not owned the land. The matters so testified over objection are urged to have been improper, for the reason that the deed was the best evidence of the facts, and the deed not being in evidence, and its loss not established, its contents could not be proved by parol. We do not concur in the assertion that the matters so testified are of the contents of the deed. They are, each and all, acts independent of the deed, though, as to the execution of a deed to Alfred Reed, the fact could have been proven also by the deed. In this respect the question does not differ from those cases holding that parol evidence is admissible to prove the payment of a written contract, where a receipt has been executed; that an agent has been appointed, though the appointment is in writing; a birth or marriage, where there is a public record of the fact; that a dog has been registered for taxation, etc. Hewitt v. State, 121 Ind. 245, 23 N. E. 83;Coonrod v. Madden, 126 Ind. 197, 25 N. E. 1102;French v. Frazier, 7 J. J. Marsh. 425;Daniel v. Johnson, 29 Ga. 207;Nixon v. Brown, 4 Blackf. 157; Wood, Pr. Ev. 4, and...
To continue reading
Request your trial