Vaughn v. Stuzaker

• Decision Date: 08 June 1861
• Citation: 16 Ind. 338
• Parties: Vaughn v. Stuzaker
• Court: Indiana Supreme Court

16 Ind. 338

Vaughn v. Stuzaker

Supreme Court of Indiana

June 8, 1861

APPEAL from the Lagrange Common Pleas.

The judgment is reversed, with costs.

A Ellison, for the appellant.

J. B Howe, for the appellee.

OPINION

Hanna J.

Suit on notes, and to foreclose a mortgage. The defendant answered that he purchased of plaintiff all of block three, containing ten lots, in, &c., for $ 680; that plaintiff executed a deed with full covenants, &c.; that the notes were given for a part, and the mortgage to secure all, of the purchase money, &c.; that the plaintiff was not then, not has he since been, the owner of the two north lots of said block, but that they were then a part of a public street, and the defendant has been bye order of the Court compelled to permit them to be used for that purpose; that they were worth $ 65 each, and that the balance of said purchase money has been paid.

The plaintiff replied: First. A denial. Second. That the use of the two north lots for the purpose of a street, for more than eight years before the purchase by the defendant, was notorious and known to the defendant, and he purchased subject to the same.

The evidence is not all in the record. There was a general verdict for the plaintiff, and findings on special points. Motion for a new trial overruled, and judgment for the plaintiff.

The first point made in this Court is that the Common Pleas had no jurisdiction. This has been heretofore settled. Harvey v. Dakin, 12 Ind. 481; and Toner v. Mitchell, 13 Ind. 530.

The next question arises upon the construction which should be given to a deed which was in evidence, and is presented by an instruction of the Court, as follows: "That said deed did not convey to Jenks the fee simple to said two lots, but it conveyed merely a use to the public for a street; that there still remained in Bassenger a reversionary interest that he could convey to Stuzaker, and Stuzaker conveyed that interest to the defendant, and that was sufficient title to disprove the facts set up in defense, as to a total want of the title in Stuzaker, and authorizes the recovery of the amount of the notes and mortgage for the purchase money."

The deed of Bassenger quit claimed to one Jenks the two lots, "for the purpose of being used and occupied for Canal Street, altered, together with all and singular the hereditaments, &c., and the reversion and remainder, rents, issues, and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, in and to said premises: to have and to hold said premises, for the before mentioned purposes," &c.

Was the instruction right? The intention of the grantor Bassenger, was, so far as can be gathered from the deed, that the land conveyed to Jenks was so conveyed for a specific purpose, namely, to be used by the public as a street. If the said land had not been accepted for that purpose, the end intended to be accomplished would have been defeated, and the title would have remained in the grantor, unless controlled by other clauses of the deed. Westfall v. Hunt, 8 Ind....