Warbritton v. Demorett

• Decision Date: 15 October 1891
• Citation: 129 Ind. 346,28 N.E. 613
• Parties: Warbritton v. Demorett et al.
• Court: Indiana Supreme Court

129 Ind. 346

28 N.E. 613

Warbritton

v.Demorett et al.

Supreme Court of Indiana.

Oct. 15, 1891.

On rehearing.

27 N. E. Rep. 730, affirmed.

COFFEY, J.

A petition for a rehearing is filed in this case, in which it is urged that this court erred in holding the cross-complaint filed by the appellees in the court below sufficient. While the cross-complaint contains the general allegation that the appellees are the equitable owners of the land in dispute, it is claimed that the specific allegations contradict the general, and must control. The cross-complaint is entitled, “Samuel N. Warbritton v. Francis M. Demorett and Phœbe J. Demorett;” and so much of it as is material to the controversy here is as follows: “The above-named defendants, Francis M. Demorett and Phœbe J. Demorett, for cross-complaint against the plaintiff, Samuel N. Warbritton, complain of said Warbritton, and say that they are the equitable owners, and in the full and complete possession, of the following described real estate in Montgomery county, Indiana, to-wit: * * *. Cross-complainants further aver that he derived his title as follows, to-wit: He ( defendant) purchased said real estate from William Hubbard, who purchased the same from one Nathaniel Jessup, who purchased the same from one F. M. Watkins, the person from whom cross-complainants derive their title; that the said Jessup purchased the real estate * * * from Watkins * * * long before the cross-complainants purchased the same real estate from Watkins; that Watkins, at the time he sold to Jessup, put him in * * * possession, * * * and that Jessup and his grantees * * * have ever since held possession thereof, * * * and have made lasting and valuable improvements thereon; that cross-complainants purchased the real estate while * * * Jessup and his grantees were in the possession thereof * * * under said purchase from Watkins. * * * Cross-complainants aver that they are the owners of said real estate, and that said Warbritton is claiming some title thereto, interest in said real estate, adverse to cross-complainants' said title; that the claim of said Warbritton is groundless and void, and a cloud upon cross-complainants's title.”

This is by no means a model pleading, and the looseness with which it is drawn is without excuse. The doctrine that general allegations in a pleading are controlled by specific allegations in the same pleading is too familiar to the profession to require citation; but, in order to control the general allegations, they must be clearly repugnant...