Babcock. v. Doe on the demise of Bowman

G-ookins, J. Ejectment by' the lessee of Bowman against Babcock, to recover possession of a tract of land in Harrison county. Plea, not guilty. Verdict and judgment for the plaintiff. The title being in one Hallowell, he conveyed the land in dispute to Wynne, who conveyed it to William P. Bmoman, who conveyed the same to John Bowman, the plaintiff’s lessor. At the time of the latter conveyance, the grantor was an infant, and he died before attaining his majority, whereupon the defendant prayed an instruction to the jury, that they should disregard said conveyance, which instruction the Circuit Court refused.to give, and this refusal is assigned for error. The question presented by this instruction was fully considered in the case of Doe v. Abernathy, 7 Blackf. 442, where the authorities were reviewed, and it was held that the conveyance of an infant was voidable only and not void. We adhere to that opinion and it settles this question in favor of the appellee. The defendant, to show title, gave in evidence a .record and judgment of the Harrison Circuit Court, in favor of one Kelley, against Isaac Bowman, father of William P. and John Bowman, and an execution issued thereon with the sheriff’s return, and deed showing a sale to the defendant of the premises in question. It was admitted by the defendant that the property had not been appraised, whereupon the Circuit Court excluded this evidence from the consideration of the jury, and the defendant excepted. This ruling is now assigned for error. This evidence was offered, it is said, with the intention on the part of the defendant of attacking the conveyances to William P. and John Bowman for fraud, and showing that the plaintiff’s lessor held the land in trust for his father, the defendant in execution. The 'suit of K&pley against Isaac Bowman was an action of debt. The declaration contained two counts; one upon a writing obligatory, dated January 19, 1837, [112] and due December 25,1839, for 600 dollars, with 10 per cent, interest after due; the other upon a note dated january 3; 1842, for 15 dollars, due six months after date. The first note had a credit indorsed upon it of 25 dollars, June 8,1838; another of fifty dollars, of the same date; and another of 200 dollar’s, December 12, 1840. There were also the following memoranda upon the note, but by whom made did not appear: “The amount due on this note with its interest is 445 dollars and 30 cents, February 25, 1843.” “Balance principal, 375 dollars and 75 cents. Interest on balance 382 dollar’s and 55 cents — 708 dollars and 30 cents, October 9th, 1849.” The judgment was rendered October 9, 1849, and was for 375 dollars and 75 cents debt, and 332 dollars and 55 cents damages, making together the sum of 708 dollars and 30 cents. The hill of exceptions states, that, after the defendant had read, as evidence to the jury, his deed for the land in controversy, and the record of the suit of George Kepley against Isaac Bowman, the plaintiff moved to exclude from the jury, as evidence, the sheriff’s deed to the defendant, for the reason that the judgment in the suit of Kepley against Bowman was rendered on two notes, one of them executed before any appraisement law of this State came in force, and the other after appraisement laws came in force; and that the land in controversy was not appraised before sale by the sheriff. The defendant then insisted that the judgment itself, the notes, their indorsements, and the calculation thereon, proved that the judgment was rendered solely on the note executed before any appraisement law came in force in this State; but the Court were of opinion that from such proof it appeared that the judgment was rendered on both notes, and excluded said sheriff’s deed from the jury: to all which the defendant excepts, &c. At the time of the execution of the note for 15 dollars, the law of 1842 was in force which required property seized on execution to be appraised and to sell at not less than two-thirds its appraised value; and it has [113] heen frequently decided by this Court that the law of the contract governs in such case. - - W. A. Porter, for the appellant. • W. T. Otto and J. 8. Davis, for the appellee. Prima fade, the judgment of Kepley against Boioman was rendered on both notes. It was a judgment by default, upon a declaration containing two counts, and there is nothing in the record to show that the judgment was restricted to one count only. Waiving the question whether it was competent for the defendant to prove aliunde that the judgment was rendered upon the larger note only, we think he offered no proof to establish that point. The memoranda on the note were no evidence of it; because it was not proved when or by whom they were made. For ought that appears in evidence they may have been made on the day they were offered, and by some person interested in sustaining the sale. A court is not bound to submit evidence to a. jury, unless it tend to prove something. The rule is, if the evidence, taken together, tends, however slightly, to prove the party’s case, it must be submitted to the jury; but if a link in the chain is entirely wanting, it is for the decision of the court. Crookshank v. Kellogg, 8 Blackf. 256. — Haynes v. Thomas, 7 Ind. R. 38. As the evidence stood in this case, the Court was right in holding that the judgment was rendered on both notes,, and consequently right in excluding the deed offered by the defendant, in the absence of an appraisement. Per Curiam. The judgment is affirmed.with costs...