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60 Ind. App. 569

Jose v. Hunter

Indiana Court of Appeals

Decided November 26, 1913

Indiana Court of Appeals · decided 1913-11-26

<p>1. Exceptions, Bill of. — Contents.—Objections to Pleading. — An original bill of exceptions provided for by §657 Burns 1908, Acts 1897 p. 244, should contain nothing but the evidence and matters incident thereto, so that no question is presented on an objection to the filing of a supplemental complaint set out in the original bill of exceptions, p. 579.</p> <p>2. Ejectment. — Burden of Proof. — In an action for possession of real estate the burden is on the plaintiff to establish by affirma<tive proof his title and right to possession, p. 580.</p> <p>3. Ejectment. — Title to Support.- — Plaintiff in an action for possession of real estate must recover on the strength of his own title and not on the weakness of that of his adversary, p. 580.</p> <p>4. Dedication. — Streets.—Ownership of Fee. — One having a perfect title to the lots abutting on each side of a street theretofore laid out and dedicated for a street, has title of equal strength <and validity to the strip included in the street, p. 581.</p> <p>5. Ejectment. — Evidence.—Erroneous Description in Deed. — Where plaintiff sought the recovery of a strip of land on which his lots abutted and which had formerly been a public street, a deed to plaintiff’s predecessor in title, showing that the strip had been laid out as a street, was not inadmissible in evidence simply because of an error in the description of the land conveyed and apparent on the face of the deed. p. 581.</p> <p>6. Ejectment. — Evidence.—Deeds.—Where plaintiff, who owned the lots abutting on each side of a vacated street, sought to recover possession of the strip formerly included in the street, all the conveyances showing plaintiff’s chain of title to the lots back to the original owner who dedicated the strip, as well as any evidence showing or tending to show that the strip was laid out or dedicated for a street, was admissible, p. 582.</p> <p>7. Dedication. — Vacation.—Reversion to Abutting Owner. — In order that land embraced in a street which has been vacated may revert to the abutting owners, such land must have been originally laid off or dedicated for a street by those who at the time owned the land abutting on each side thereof, p. 583.</p> <p>8. Ejectment. — Occupying Claimants. — Evidence.—Admissibility.— Where defendant in an action for possession of real estate sought by cross-complaint to recover for improvements under the occupying claimant’s statute, testimony of defendant offered in support of the cross-complaint to the effect that a certain lawyer advised him that he could obtain complete title by bringing suit, and that he did take the action he was advised to take, was not within the rule that where a state or condition of mind becomes material in giving character to an act, the advice of counsel undér the influence of which the act was done is controlling, since it did not relate to the state or condition of defendant’s mind at the time he made the improvements, and was properly excluded not only on that ground but also on the ground that it involved the conclusion of the witness. p. 584.</p> <p>9. Trial. — Objections to Evidence. — Evidence Admissible in Part.— Where competent and incompetent evidence is blended together and offered as a whole, it is not error to sustain an objection to the whole, p. 586.</p> <p>10. Ejectment. — Occupying Claimants. — Recovery for Improvements. — Good Faith. — Presumption and Burden of Proof. — Under §1121 Burns 1908, §1074 R. S. 1881, providing for the recovery by an occupying claimant for taxes and for improvements when made in good faith, under color of title, the occupying claimant has the burden of proof on the question of good faith, and is aided by the presumption of good faith in so far only that such presumption will determine the question in his favor in the absence of evidence to the contrary sufficient at least to weigh equally with it. p. 586.</p> <p>11. Ejectment. — Occupying Claimants. — Recovery for Improvements. — Color of Title. — Good Faith. — Where the findings show color of title in an occupying claimant, such finding, in the absence of anything to the contrary, would give rise to the presumption of good faith in the making of the improvements for which recovery is sought, but a further finding that the improvements were made with full knowledge of the rights of plaintiff is inconsistent with the theory that they were made in good faith, p. 588.</p> <p>12. Ejectment. — Findings.—Right to Possession. — In an action in ejectment, a conclusion of law that plaintiffs are the owners in fee simple and are entitled to possession, can not stand where there was no finding that plaintiffs were entitled to the possession of the real estate in controversy, and the omission is not cured by a finding that title “rested” in plaintiffs, pp. 588, 58,9.</p>

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1913-11-26

How this case has been cited

Cited by 10 later decisions — most recently September 1960

10 state decisions

60191319201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1ON PETITION FOR REHEARING

Hottel, J.

¶212. Appellees in a petition for rehearing in this case earnestly urge that the facts found by the trial court, taken as a whole, necessitate the inference that the appellees were entitled to the possession of the real estate in controversy. In support of this contention it is urged that appellees’ right to the possession of the abandoned street in controversy necessarily rests on their right to the possession of their abutting lots on either side of such street, and hence, that a finding that appellees were entitled to the possession of such lots would of necessity carry with it a finding that they were entitled to the possession of that part of the street in controversy.

¶3The legal proposition involved in this contention, thatthe right to possession of the lots under the facts *590of this case would of necessity carry with it the right to the possession of that part of the street on which they abut, is doubtless correct; but, the trouble with appellees’ contention is that there is no finding that they were in possession of or entitled to the possession of the abutting lots. As to such lots there is a finding to the effect that the title to them had been conveyed to appellees and that such title rested in them at the time of the trial. This finding would probably necessitate the" inference of ownership of such lots, but not necessarily an inference of possession or the right to such possession. So far as the finding shows, the lots may have been rented or leased for a period of years and the right to possession thereof may have been in the lessee rather than the owner.

¶4We are aware that some of the more recent cases of the Supreme Court have to some extent relaxed the rule of the inference to be indulged in favor of pleadings, but we do not feel that these cases authorize the inference for which appellees contend in favor of the finding in this case. On the contrary the present holdings of the Supreme Court on the subject of the inferences to be drawn in favor of a special finding of facts support the opinion heretofore, rendered in this case and hence the petition for rehearing is overruled.

¶5Note. — Reported in 103 N. E. 392, 852. As to chattels or fixtures as subjects of ejectment, see 116 Am. St. 574. As to the general rule that plaintiff in ejectment must recover, if at all, on the strength of his own title, see 18 L. R. A. 781; 45 L. Ed. U. S. 423. See, also, under (1) 3 Cyc 26; (2) 15 Cyc 123; (3) 15 Cyc 20; (4) 13 Cyc 486; 28 Cyc 845; (5, 6)' 15 Cyc 135; (7) 28 Cyc 846; (9) 38 Cyc 1335; (10) 15 Cyc 231, 235; (11) 15 Cyc 229; (12) 15 Cyc 166,169.

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