Wilson v. Johnson
| Citation | 38 N.E. 38,145 Ind. 40 |
| Decision Date | 18 September 1894 |
| Docket Number | 16,873 |
| Parties | Wilson v. Johnson |
| Court | Supreme Court of Indiana |
Rehearing Denied May 12, 1896, Reported at: 145 Ind. 40 at 46.
From the Gibson Circuit Court.
Affirmed.
W. H De Wolf, L. C. Embree, and W. C. Johnson, for appellant.
W. A Cullop, C. B. Kessinger, and O. H. Cobb, for appellee.
Appellant sued appellee, in the Knox Circuit Court, to recover possession of the west half of the northeast quarter of section twenty-two, in township one, in said Knox county. The suit was commenced in the Knox Circuit Court, resulting in a judgment in that court in favor of appellant. That judgment was set aside and a new trial granted, as a matter of right under the statute. On the application of appellee the venue was changed to the court below, over appellant's objection and exception.
The next trial resulted in a judgment in the court below in favor of appellee, over a motion for a new trial for alleged cause.
The errors assigned call in question the order granting the change of venue and that overruling the motion for a new trial.
The motion for the change and the affidavit in support thereof, were not filed within the time required by the rule of the Knox Circuit Court. But the affidavit stated, as an excuse for the delay, that the appellee "did not sooner discover the above ground for a change of venue."
It is insisted by the appellant that the affidavit was insufficient for its failure to state that the appellee had used diligence to discover that the alleged odium attached to his defense on account of local prejudices, and he cites in support of such contention Witz v. Spencer, 51 Ind. 253, and Ringgenberg v. Hartman, 102 Ind. 537, 26 N.E. 91. These cases were overruled, in so far as they require the applicant for a change of venue to show diligence in discovering the grounds of such application, in Ogle v. Edwards, Admr., 133 Ind. 358, 33 N.E. 95, which has been followed in several cases since. Bement v. May, 135 Ind. 664, 34 N.E. 327. Besides the motion for a new trial does not specify the granting of the change as one of the causes therefor.
The failure to assign such ruling as a cause in a motion for a new trial, is a waiver of such error if any there was therein. Caldwell v. Board, etc., 80 Ind. 99; Shoemaker v. Smith, 74 Ind. 71; Horton v. Wilson, 25 Ind. 316; Bane v. Ward, 77 Ind. 153. There was no available error in granting the change of venue.
On the last trial, appellant undertook to trace his title back to the government, and among the reasons assigned by him for a new trial, was the refusal of the trial court to allow him to read in evidence certified copies of three deeds purporting and claimed to be links in his chain of title.
The objection to the introduction of the deeds was that they did not describe the land in controversy in the suit. It is admitted, in argument by appellant, that the deeds did not describe the land. But it is contended that the first deed that was rejected referred to another deed, which other deed did correctly describe the land in such a manner as to make the description in the deed referred to a part of the deed offered in evidence, and that the error in rejecting such deed should work a reversal of the judgment, even though the other two offered deeds were correctly rejected.
It would be needlessly extending this opinion, to go into an examination of the ruling in rejecting the first deed, because we find, from an examination of all the evidence in connection with the last two deeds rejected, that the result of the trial must have been as it was, a finding and judgment for the appellee, even if the first rejected deed had been received in evidence. The last two deeds contain no description of any land whatever, and they contain no reference to any other document where such description may be found, and they are necessary links to make the appellant's chain of paper title good.
The description in the second rejected deed is as follows: "Have granted, bargained, sold, assigned, transferred, set over, conveyed, released, and confirmed, and by these presents, and by force and virtue of the above recited order and decree of court, and the power thereby in them vested, and of every other power and authority there, enabling in this behalf, do grant, bargain, transfer, set over, convey, and confirm, unto the said George Peabody, his heirs, executors, administrators, and assigns, all the remaining assets, so, as aforesaid, conveyed and transferred to the said trustee, as set forth in the said schedule 'V,' a copy whereof is hereto annexed, and also their right, title, and interest in and to all the other assets of the Bank of the United States, as the same were granted and conveyed to the grantors herein," etc.
The description in the third rejected deed is substantially the same as the foregoing. There was no attempt to reform these deeds or to cure the defects therein by any sort of pleading or evidence.
It has often been held, by this and other courts, that deeds purporting to convey lands which do not describe or designate the lands, are invalid for uncertainty. Buchanan v. Whitham, 36 Ind. 257; Shoemaker v. McMonigle, 86 Ind. 421; Devlin Deeds, section 1010 et seq.
There was no error in refusing to allow the last two deeds to be read in...
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