Warbritton v. Demorett

Coffey, J. — This was an action by the appellant against the appellees to recover the possession of the real estate described in the complaint. In addition to the general denial, the appellees answered that one Watkins, being the owner of a certain described tract of land in Montgomery county, Indiana, sold the portion thereof described in the complaint to one Jessup, and placed him in the possession thereof; that in attempting to convey said land by deed to the said Jessup, a mistake occurred in the description, by reason of which said deed did not cover all the land purchased ; that subsequent sales and conveyances were made from the said Jessup to persons named until the appellees became the owners of said land ; that the persons through whom the appellees make their title each purchased the whole of the land described in the complaint, and each was put into the actual possession of the whole thereof, and made valuable and lasting improvements thereon, but that the mistake in the description runs through all the conveyances ; that each of said conveyances was duly recorded; that subsequent to the sale and conveyance to the said Jessup, Watkins sold and conveyed the remainder of the land so owned by him to the appellant, who at the time of his purchase had full knowledge of the fact that Watkins had sold to Jessup, and attempted to convey, the land described in the complaint; that the grantees of the said Jessup were in the actual possession of the land in controversy at the time the appellant made his purchase from the said Watkins. [348] The appellees also filed a counter-claim, in which they set up substantially the same facts averred in the second paragraph of their answer, and prayed that their title to the land might be quieted. The court overruled a demurrer to the second paragraph of the answer and also to the counter-claim. A trial of the cause, by jury, resulted in a verdict for the appellees, upon which the court, over a motion for a new trial, rendered judgment. The assignment of errors calls in question the correctness of the ruling of the circuit court in overruling the demurrer to the second paragraph of the answer, in overruling the demurrer to the counter-claim, and in overruling the appellant’s motion for a new trial. As the questions presented by overruling the demurrer to the second paragraph of the answer and in overruling the demurrer to the counter-claim are substantially the same, they may with propriety be considered together. In our opinion the «ourt did not err in overruling either of said demurrers. Each of the demurrers admits that Watkins sold the land in controversy to Jessup, and placed him in possession of the same; that Watkins undertook to convey the land, but by mutual mistake it was incorrectly'described; that Jessup and his grantees Rave ever since been in the actual possession of the land, and have made lasting and valuable improvements thereon ; and that the appellant, at the time of his purchase, had full knowledge of the sale so made by Watkins. The sale by Watkins to Jessup, followed by the delivery of possession and valuable and lasting improvements, vested the equitable title in Jessup, and the appellant having purchased with notice of such equitable title, took the legal title subject thereto. Indiana, etc., R. W. Co. v. McBroom, 114 Ind. 198; Barnes v. Union School Tp., 91 Ind. 301; Smith v. Kyler, 74 Ind. 575. It is urged, however, that the counter-claim seeks a cor [349] rection of the deeds from Watkins and the other parties through whom the appellees make their title, and that there is a defect of parties, in that all the parties executing such deeds should have been made parties defendant. Filed May 20, 1891. The appellant misconceives the object sought by the counter-claim. Its object was to quiet title to the land in dispute as against the claim of the appellant. To such an action the grantors of the appellees were not necessary parties. Nor do we think the court erred in overruling the appellant’s motion for a new trial. The evidence in the cause fully supports the answer and the counter-claim. The land in dispute was enclosed by a fence and was sold by Watkins and possession delivered. The party to whom he sold and his grantees have ever since been in the actual possession of the land and have made lasting and valuable improvements, and have fully paid the purchase-price. They were so in possession at the time the appellant purchased. The objection that the verdict of the jury gave appellees more land than they were entitled to recover is not well taken. The conveyance of land bordering on a public highway, as a general rule, conveys title to the center of the highway, whether so expressed in the deed or not. Terre Haute, etc., R. R. Co. v. Rodel, 89 Ind. 128. Locating the line at the center of the highway bordering the land in dispute does not give the appellees more land than they were entitled to receive under the purchase from Watkins. There is no error in the record. Judgment affirmed.