Milhon v. Brown

143 N.E.2d 573, 127 Ind. App. 694, 1957 Ind. App. LEXIS 172
CourtIndiana Court of Appeals
DecidedJuly 9, 1957
Docket18,837
StatusPublished
Cited by6 cases

This text of 143 N.E.2d 573 (Milhon v. Brown) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milhon v. Brown, 143 N.E.2d 573, 127 Ind. App. 694, 1957 Ind. App. LEXIS 172 (Ind. Ct. App. 1957).

Opinions

Cooper, P. J.

This is an appeal by the appellant from the judgment in a cause wherein the appellee filed a complaint in three paragraphs.

The appellant filed a motion for a separate trial on the third paragraph of complaint, which motion was sustained by the trial court.

[696]*696The first paragraph of the appellee’s complaint was to quiet title to the following-described real estate in Morgan County, Indiana:

“All of the Northwest quarter of Section 10, and all the South half of Section 3, Township 12 North, Range 1 East, which lies East of White River, except 20 acres off the East side of the East fraction of said Northwest quarter of Section 10, bounded on the North by White River and on the South by Martinsville and Mooresville State Road.”

Second paragraph of appellee’s complaint was in ejectment and trespass. The appellant answered by general denials to each rhetorical paragraph of the complaint, except as to rhetorical paragraph two of first paragraph of complaint, wherein the appellant asserted that he was the owner in fee simple of the land in Section 3 as herein set out:

“Part of the West half of Section 3, Township 12 North, Range 1 East, described as follows: Beginning at a stone marking the center of Section 3; thence following the center of a County road, North 1.00 chain; thence North 36 degrees West 1.30 chains; thence West 17.60 chains; thence North 33 degrees West 0.63 chains to the center of the Pennsylvania Railroad; thence following the center of said Railroad South 60 degrees 30 minutes West to the West line of Section 3; thence South following said West line of Section 3, to the Southwest corner of Section 3; thence East following the South line of Section 3, to the South half mile corner of Section 3, thence North to the place of beginning, containing 145 acres, more or less,”

and that his title is superior to the claim or title of the plaintiff.

Thus, under the issues, only the title to the lands lying in Section 3 is in controversy.

[697]*697The causes, among others, for which the new trial was asked, were that the verdict was not sustained by sufficient evidence and was contrary to law.

The evidence in the record shows that at the beginning of the trial there was a certain stipulation made by the parties concerning various conveyances made to 98.76 acres of land in Morgan County, the same being described in the stipulation as, all the northwest quarter east of White River, excepting twenty acres off of the East side of the East fraction of the Northwest Quarter bounded on the North by White River and on the South by the Martinsville and Mooresville road. There is no direct reference in the stipulation as to any land in either Section 10 or Section 3 as alleged in the appellee’s complaint. There were no exhibits or deeds put in evidence as to her title thereto. The stipulation reveals that the first time the appellee held title to the real estate hereinabove described in the stipulation was on November 29, 1946, when Giles M. Dickson and Elizabeth M. Dickson, husband and wife, conveyed to her the real estate described in the stipulation, and, thereafter, on February 21, 1947, the appellee reconveyed to the said Giles M. Dickson and Elizabeth M. Dickson, husband and wife, the same real estate, and thereafter, after the death of Giles M. Dickson on February 8, 1949, his widow conveyed to Myra Craddick, Trustee to reconvey the same real estate to Elizabeth M. Dickson and Mary Catherine Brown, jointly, with full and complete right of survivorship, and that said deed was recorded on February 11, 1949, in the office of the Recorder of Morgan County.

The record shows that appellee, on direct examination, in testifying as to the physical boundaries of the farm, said that she understood the accepted boundaries on the north was the river.

[698]*698On cross-examination, however, the appellee testified that she first became interested in the land in controversy in 1948; that she was claiming ownership in the acreage described in the deed.

That the appellee was not claiming any land in Section 3 is shown by the following pertinent questions propounded to the appellee and her response thereto:

“Q. Do you have any knowledge at all as to the section lines located on that land, as to where they are?
“A. All I have to go by is the deed.
“Q. Well, your deed does not call for any land in Section 3?
“A. No, sir, it does not.
“Q. So, if you went by the deed you would not be claiming any land in Section 3?
“A. No.
“Q. You are claiming by the deed?
“A. I am not claiming any land in Section 3.
“Q. You are not claiming any land in Section 3?
“A. No, sir.
“Q. Do you claim any land in Section 4?
“A. No, sir.
“Q. Do you claim any land in Section 8?
“A. No, sir.
“Q. All you are claiming is in Section 10?
“A. That is right.”

There was no evidence from any of appellee’s witnesses or from any other witness from which it could be found or reasonably inferred she owned or claimed any interest in any real estate in Section 3. In fact her own evidence heretofore set out indicates she claimed no such interest.

Thus, it is apparent that appellee has failed to sustain the burden of proof that she is the owner of the record title to any land whatsoever in Section 3, as averred in paragraphs Nos. 1 and 2 of her complaint.

[699]*699In an action to quiet title to real estate the plaintiff must prevail on the strength of his own title and the failure of the defendant to establish title to the involved real estate, as is the situation in this case, furnishes no ground for recovery by the plaintiff. Hughes v. Cook (1955), 126 Ind. App. 103, 130 N. E. 2d 330, 333; L. & G. Realty & Const. Co. v. City of Indianapolis (1957), 127 Ind. App. 315, 139 N. E. 2d 580. For additional authorities, see West Ind. Digest, Vol. 23, page 380.

As we have stated, the appellee, upon the record before us, failed to establish a record title to any lands in Section 3 as averred and described in paragraphs Nos. 1 and 2 of her complaint; and there is no evidence whatsoever that any part of the 98.76 acres referred to in the stipulation is in said Section 3, as averred in paragraphs Nos. 1 and 2 of her complaint. It would appear, then, that appellee must rely upon the adverse possession of the land described in Section 3 as establishing title thereto in her. We, therefore, look for evidence to sustain the essential elements requisite to raise in her a title by adverse possession. Such elements are now well known and require no citation of authority in defining them.

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Milhon v. Brown
143 N.E.2d 573 (Indiana Court of Appeals, 1957)

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Bluebook (online)
143 N.E.2d 573, 127 Ind. App. 694, 1957 Ind. App. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milhon-v-brown-indctapp-1957.