McGill v. Doe ex dem. McCall

9 Ind. 306

• Court: Indiana Supreme Court
• Decided: June 8, 1857
• Status: Published

Opinion

Perkins, J. —

Ejectment by Doe on the demise of Me Call against McGill, for lot No. 379, in Vincennes. Recovery by the plaintiff. The suit was in 1852. The facts in the case upon which the questions of law arose are, briefly, these:

In November, 1829, Lewis Robinot conveyed the lot in question to “ John Wise, trustee for and on the part of Thomas F. Me Call” for the consideration of 300 dollars, paid by “ said Wise as trustee for said Me Call,” the grant being to Wise, trustee for and on behalf of said Thomas F. Me Call, his heirs and assigns forever; habendmn to Wise, for and on behalf of McCall, his heirs and assigns forever. In September, 1843, uJohn Wise, trustee of Thomas F. Me Call,” executed a deed for the lot to Moses Knight, then in possession. Me Gill, the defendant below, was in possession under Knight. Thomas F. McCall died in 1849, aged about twenty-three years. In 1850, the interest of his heirs in lot 379, was sold under a decree of the Probate Court, McCall, on whose demise this suit was brought, being the purchaser. Knight was then in the adverse possession of the lot.

In the code of 1843, which came into force in 1844, at p. 447, ss. 181,182,183, it is enacted that—

“ Sec. 181. Every disposition of lands, whether by deed, devise, or otherwise; shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not'to any other, to the use of, or in trust for, such person; and if made to one or more persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee, except as provided in the 183d section of this chapter.

“ Sec. 182. Every person who, by virtue of any deed, conveyance, assignment, or devise, shall hereafter be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.

“Sec. 183. The last two preceding sections shall not divert the estate of any trustees in any trust, when the title of such trustees is not merely nominal or formal, but is connected with” some power of actual disposition or management in relation to the lands which are the subject of the trust.”

We think the operation of these provisions of the statute was immediate, and operative upon existing trust estates. They affected no substantial properly interest. Practically, they simply authorized a recovery, by ejectment, of property before recoverable only in chancery. They affected the remedy only, without reaching to substantial rights, and were liable to no constitutional objection. Graham v. The State, 7 Ind. R. 470.—Pritchard v. Spencer, 2 Ind. R. 486, and the cases cited. See Van Rensselaer v. Snyder, 3 Kernan, (N. Y.) 299; Davis v. The State Bank, and cases cited, 7 Ind. R. 316.

As against John Wise, therefore, the statute conveyed the legal title, and the present action would be sustainable. And a purchaser from him, with notice of bis title, could stand in no better situation. Sweeney v. Sampson, 5 Ind. R. 465.

S. Judah, for the plaintiff (1). B. M. Thomas, for the defendant.

We think it appears, from the face of the deed of Wise to Knight, in connection with the fact that the latter had been for years in possession of the land when the deed was made, that Knight was a purchaser with notice. The facts show a case in which it was Knight's duty to malee inquiry. It must be presumed that he did.

Under the statute, then, the ejectment was sustainable against him, if the question of adverse possession did not interfere with the right to recover.

But it has been held that judicial sales are not affected by adverse possession — that they are not within the mischief of “the champerty doctrine.” 1 Dana, on p. 216. Kent says, in note to p. 447, vol. 4, that “judicial or official sales are not within the policy of the champerty law”— citing authorities from Kentucky and Pennsylvania. We approve and follow these authorities. See Foust v. Moorman, 2 Ind. R. 17, and cases cited.

The distinction does not appear to have been considered in Martin v. Pace, 6 Blackf. 99.

Per Curiam. —

The judgment is. affirmed with costs.