Goodwin v. Doe

1 Ind. 302

• Court: Indiana Supreme Court
• Decided: July 1, 1848
• Status: Published

Opinion

THIS was an action of ejectment, brought by the .appellees as the heirs of Thomas Kensett and Charles Shelton, against the appellant. Upon the trial the appellees offered the following evidence:

1st. A deed, dated March 12th, 1834, made by one Murdock, and conveying all his interest, and also, as attorney in fact of Kensett and Shelton, all their interest in the land in controversy, to Nathan D. Gallion.

2d. A quit-claim deed from Gallion to the appellant. This deed contains a recital, to the effect, that said land was conveyed to Gallion by the deed of Murdock, dated March 12th, 1834.

3d. Three depositions, proving that the appellees are the heirs at law of said Kensett and Shelton, and that both the latter persons died previous to the year 1834.

The appellant did not offer any testimony, and the above being all the evidence in the case, the Court, to whom the cause was submitted, found for the plaintiff and rendered judgment accordingly.

This judgment must have been predicated on the supposition that, by the exhibition of the deeds above mentioned, the appellees had traced the title of the parties litigant to a common source, and that the recital in the deed from Gallion estopped the appellant from denying the title of the ancestors of the appellees. But there is no proof that the appellant came into possession of the premises under that deed, or that the deed itself was ever in his possession; and without evidence that he was in some way connected with it, the recitals it contains-cannot be held binding upon him.

Besides, the deed from Murdock conveys his interest as well as that of the ancestors of the appellees, and if the bare fact that a paper was in existence purporting to be such a deed, could be held sufficient evidence of a former title and possession in the grantors, the appellees, if the interest of their ancestors had not been legally conveyed away, were entitled to recover that interest only. They certainly could not, on such grounds, establish a claim to the whole premises, including the interest of Murdock.

We think the evidence is insufficient to sustain the judgment.

The judgment is reversed with costs, &c. Cause remanded.