Westfall v. Hunt

Decision Date28 November 1856
Citation8 Ind. 161
PartiesWestfall v. Hunt
CourtIndiana Supreme Court

From the Boone Circuit Court.

The judgment is reversed with costs. Cause remanded with instructions to enter judgment for Westfall, the defendant below.

J. C Hague, for appellant.

OPINION

Davison J.

Covenant by Hunt against Westfall. The declaration states that the defendant in consideration, etc., by deed bargained and sold to the plaintiff a certain lot of ground in Thorntown, Boone county, (describing it); and, by the same deed, covenanted that he was seized in fee of the lot, and had a good right, to sell and convey the same; that, by force of the deed, the plaintiff should lawfully possess and quietly enjoy the premises conveyed; and that he, the defendant, would warrant and defend them against all lawful claims whatsoever. It is averred that the defendant was not seized, nor had he, as alleged, good right to convey. That the plaintiff, by force of said deed, could not lawfully possess the premises; nor hath the defendant warranted them against all lawful claims, but on the contrary, at the time the deed was executed, the paramount title and freehold of the lot conveyed was in a person other than the defendant; and that by virtue of such paramount title, the plaintiff had been evicted. In defense of the action it was pleaded, 1. That the defendant was seized and had good right and lawful authority to convey; 2. That the plaintiff was not disturbed in his possession of the premises, nor was he evicted.

The case, upon an agreement of facts, was submitted to the Court, who found for the plaintiff 99 dollars; and over a motion for a new trial, there was judgment.

The facts agreed on are these: In the year 1830, Westfall, being seized in fee of the land on which Thorntown is situate, laid out said town and made a plat of it, which was, on the 10th of April of that year, duly recorded. Upon this plat, the lot in question is distinctly marked, "Public Square." Commissioners appointed to locate the seat of justice of Boone county, met for that purpose in said county, in June 1830, and Westfall then and there offered and tendered the lot designated "Public Square," for the purpose of erecting thereon a court-house; and further, as an inducement to the location of said seat of justice at Thorntown, he offered to donate to said county thirty other lots; but the commissioners refused to accept the donation, and shortly afterwards made such location at Lebanon, where the seat of justice of said county has ever since remained. From the time Westfall offered the lot to the commissioners, it was, and continued to be, until the 24th of February, 1852, unoccupied and uninclosed. At that date he sold and conveyed the same lot to the plaintiff, who has remained in quiet and undisturbed possession under his deed. Westfall, in July, 1852, filed another plat of said town, similar to the first, with this exception: in the latter he avers that the lot marked "Public Square" was laid out and was intended to be donated to the county of Boone, provided that the county seat was located at Thorntown, and the court...

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