Rhea v. Swain

Olds, J. The appellants conveyed to the appellee certain real estate' by deed of general warranty. The appellee occupied the land a few years, when parties by the name of Shake made claim of title thereto, and the appellee and one Eli P. Shake commenced an action against Jacob Shake and others to quiet the title to the land, and notified the appellants of such action, and that the title to said land was disputed, and claimed by the defendants Shake, and others. The appellants appeared in said action, and filed a complaint, and contested the title to the land with the defendants in said action; issues were joined and trial .had, resulting in a finding and judgment in favor of the defendants, Jacob Shake and others, that they were the owners of the land, and entitled to possession against both'the appellants and appellee. The appellee then brought'this action for breach of the covenants of warranty. To this action the appellants pleaded by [273] answer and cross-complaint, in which they allege, among other things, the fact that the appellee had occupied the land, its rental value, and that he had also cut and removed timber of the value of $ 100; and further alleged, in the cross-complaint, that the appellee, for the purpose of avoiding the payment of his notes, given for the balance of the purchase-money, conspired with Eli' P. Shake and brought the suit against Jacob Shake et al. to quiet title, and asked that the value of the rent and timber be set off against any sum found due the plaintiff. A motion was made to strike out the allegations in regard to the rent and conspiracy, and the motion was sustained, and this ruling of the court is assigned as error. There was no error in this ruling; the measure of damages is the amount of the purchase-money, with interest, and the appellants were not entitled to set off the value of rent, or the timber cut and removed. The appellee was liable to the true owner for the rent and the timber. Wilson v. Peelle, 78 Ind. 384. It is contended that in the former suit between appellants^ appellee, and Shake and others, Shake, the owner of the land, sued for the rent, and failed to recover a judgment for the same, and that the appellee is relieved by the judgment in said cause from any liability for rent to the true owner; that the appellants in this case stand in the position of having paid the rents to the true owner, and, therefore, have the right to have the rents set off against any sum that may be due from the plaintiff. The transcript in the cause is not not properly endorsed, with marginal notes, as required by rule 19, but we have examined the record in said cause, as • introduced in evidence, and we do not think there is anything in the record which changes the status of the parties, and makes the appellants the owners of the rent, or the real estate, or the timber taken therefrom, and entitling them to [274] set off the value of the same against any sum found due the appellee in this case. There are no allegations controverting the fact that the defendants in the other suit were, in fact, the true owners of the land, and the allegations in regard to the conspiracy were immaterial, and there was no error in striking them out. It is contended that the court erred in excluding the record, in the former case, when offered by the appellants in evidence; but the record was already in evidence, and no good would have been subserved by again putting it in evidence. It is also contended that the court erred in excluding the testimony of some witnesses relating to the rents of the real estate ; in this there was no error. The rents were not properly a set-off, and the evidence relating thereto was properly excluded. It is also contended that the court erred in giving and refusing instructions asked for by defendants. We have examined the instructions, and they correctly state the law of the case, and there was no error in refusing the instructions asked for by defendants and not given. We do not deem it necessary to set them out in the opinion. It is further contended that the verdict of the jury is not sustained by the evidence, and that the damages assessed are excessive. It was contended by appellee that he paid for the land $1,800, as follows : $8 in corn, and notes on one Johnson for $992 ; which corn and notes were accepted as an absolute payment, or as a $1,000 cash payment, and gave his notes, secured by mortgage on the land, for $800 of a balance; while it was contended by appellants that the Johnson notes were taken as collateral, and that the appellants, before the commencement of this suit, had tendered back all they had received, and the jury found for the appellee, and returned a verdict for $1,000, and interest, amounting to $1,075.66. There is evidence tending to support the verdict. [275] Filed Nov. 27, 1889. There is no error in the record for which the judgment should be reversed. Judgment affirmed, with costs.