Weigold v. Pross

31 N.E. 472, 132 Ind. 87

• Court: Indiana Supreme Court
• Decided: May 24, 1892
• Docket: 15,909
• Status: Published

Opinion

Olds, J.

— This is an action of ejectment, and there was a finding and judgment for the plaintiff.

The only question presented relates to the sufficiency of the evidence. The appellant appeared and made a defence, and filed an answer in denial of the complaint. Upon the trial the appellant admitted that the appellee was the owner of the real estate, but there was no withdrawal of the answer.

When the defendant appears and joins issue under which he can make a defence, there is no necessity of the plaintiff making proof of defendant’s possession. Such proof is expressly dispensed with by section 1056, R. S. 1881.

Under an answer in denial in an ejectment case, a defendant is permitted to give in evidence every defence to the action that he may have, either legal or equitable. And when the defendant appears and answers by denial, the evidence of his possession is dispensed with, and the fact that he admits title in the plaintiff does not make such proof necessary, for he still has the right to make any other defence he may have.

Filed May 24, 1892.

The joining of the issue fixes the proof necessary to be made by the plaintiff, and the fact that the defendant admits one fact which it is necessary for the plaintiff to prove, does not add to the facts necessary to be proven, any more than if the plaintiff had proven the fact independent of an admission.

The appellant in this case appeared and answered by denial, taking such steps as were necessary to give in evidence every defence he may have had.

He availed himself of the right to give in evidence all of his defences. Under this state of the issues, the appellee was not required to prove appellant in possession. By appearing and pleading to the action,the defendant admits his possession. Holman v. Elliott, 86 Ind. 231; Carver v. Carver, 97 Ind. 497.

There is no error in the record.

Judgment affirmed, with costs.