Wells v. Benton

• Decision Date: 12 October 1886
• Citation: 8 N.E. 444,108 Ind. 585
• Parties: Wells v. Benton.
• Court: Indiana Supreme Court

108 Ind. 585

8 N.E. 444

Wells

v.Benton.¹

Supreme Court of Indiana.

October 12, 1886.

Appeal from Jackson circuit court.

W. K. Marshall and Frank Brannaman, for appellant. B. H. Burrell and Applewhite & Applewhite, for appellee.

Zollars, J.

Appellant in his complaint, and appellee in his cross-complaint, each sought a quieting of his title against the other in and to the 140 acres of land in dispute. The court below made a special finding of the facts, and upon them pronounced its conclusions of law, and rendered a decree quieting the title to the land in appellee upon his cross-complaint.

It appears from the facts so found that on the twenty-seventh day of August, 1865, one Wright owned 200 acres of land, and, by a warranty deed executed on that day, conveyed it to Charles W. Conner, and put him in possession. On the twenty-third day of October, 1865, Conner sold the land to one Alexander M. Thompson, received from him full payment therefor, and executed to him a warranty deed, by which he intended to convey to him the whole of the 200 acres of land, but, by the error and mistake of the parties and the scrivener, the description written in the deed described but 60 acres; there being no description that covered the remaining 140 acres of the 200 acres intended to be conveyed. Thompson, ignorant of the mistake, accepted the deed, and went into the possession of the whole 200 acres of land, and held possession of it until 1873.

On the twenty-fifth day of October, 1871, D. I. Harrel recovered a judgment in the common pleas court against Thompson. On the second day of November, 1871, an execution was issued upon the judgment, and levied upon the whole 200 acres of land as the property of Thompson. The execution was returned on the twenty-ninth day of April, 1872, with an indorsement that the property had not been sold for want of time. On the tenth day of May, 1872, a venditioni exponas was issued, and the whole of the 200 acres was sold by the sheriff on the eighth day of June, 1872, as the property of Thompson, and was purchased by James C. Wells. He paid the purchase money, and received a sheriff's certificate of purchase. In June, 1873, Wells entered into the undisputed possession of the whole of the 200 acres, and held that possession until 1879, when he assigned his certificate of purchase to Samuel T. Wells, plaintiff below, and appellant here. On the twenty-seventh day of February, 1879, appellant received a sheriff's deed for, and went into the possession of, the whole 200 acres sold as aforesaid, and continued in that possession until the trial of this cause below.

The mistake in the description of the land in the deed from Conner to Thompson was not discovered until some time in the year 1877. In February, 1879, after proper requests from appellant, Conner refused to sign or execute any deed in the way of correcting the mistake in his deed to Thompson. On the twenty-sixth day of May, 1879, at the request of Alexander M. Thompson, Conner, for a named consideration of $750, executed to Lucy A. Thompson, wife of Alexander M. Thompson, a warranty deed for the 140 acres of land which by mistake had been omitted from his (Conner's) deed to Alexander M. Thompson, as above stated. It was recited in the deed to Lucy A. that said consideration was to be paid and discharged by her by the payment of two judgments against Conner,-one in favor of George V. Benton, for $263, of date May 19, 1868, and the other in favor of George V. Benton, for $516, of date May 7, 1875. At the time this deed was executed the 140 acres, with the balance of the 200 acres, of land, was in the possession of appellant, who was claiming title thereto by virtue of the sheriff's sale, as above stated. After the death of Alexander M. Thompson, leaving Lucy A. as his widow, and on the twenty-second day of April, 1884, she, by a quitclaim deed, conveyed to appellant all of her right, title, and interest in and to the whole of the 200 acres of land 140 acres of which had been conveyed to her by Conner as above stated.

These are the facts upon which appellant predicates his claim of title.

Appellee's, Benton's, claim of title rests upon the following state of facts found by the court below: On the seventh day of May, 1875, George V. Benton recovered a judgment against Conner, the grantee of Alexander M. Thompson, in the circuit court, for $516, being one of the judgments mentioned in the deed from Conner to Lucy A. Thompson. On the twenty-ninth day of May, 1884, an execution was issued upon that judgment, and was levied upon the 140 acres of land which Conner had sold to Alexander M. Thompson as a part of the 200 acres, but which, by mistake, as above stated, was not described in the deed from Conner to Alexander M. Thompson. On the twenty-eighth day of June, 1884, the sheriff sold the 140 acres to appellee, Benton, who, having paid the purchase money, received from the sheriff a certificate of purchase. On the fourteenth day of May, 1885, Benton received a sheriff's deed for the 140 acres. At the time of this sheriff's sale appellant was in the sole and exclusive possession of the land, claiming title thereto as above stated, and on the day of the sale gave notice to appellee that he claimed to own the land in fee-simple, free from all liens on account of the Benton judgments, and that he would defend his claim and title by law against any one who might buy the land.

It will be observed that appellant's claim of title rests upon the sale and deed from Conner to Alexander M. Thompson in 1865, with the attendant mistake in the description; the sheriff's deed to appellant in 1879, resting upon a sheriff's sale in 1872, and a judgment taken against Alexander M. Thompson in 1871, after his purchase from Conner, and while he was in the possession of the land by virtue of that sale, but when the legal title was still in Conner; Conner's deed to Lucy A., wife of Alexander M. Thompson, made, at the request of Alexander M., in 1879; and the deed from Lucy A. to appellant...