Shipley v. Shook , 1 Ind. L. Rep. 87 ( 1881 )

Opinion of the court bv

Mr. Chief Justice Niblack.

This wás an action for the recovery of real estate.

Murray Shipley, William H. Hoover, James R. Pumpley and Albert R. Haisey, complained that they were the owners in fee simple and entitled to the immediate possession of the undivided two-third parts of lots Nos. 63 and 64, in Allen’s plat of the town of Brookville, and that Alexander Shook was in the possession of those lots without right, and that Mary H. Kim-ble and Henry C. Kimble, who were made defendants to answer as to their interests, claimed to be the owners in fee simple of said lots.

Shook answered in two paragraphs.

1. In general denial.

2. That he was in possession of said lots as the tenant of his co-defendant, Mary H. Kimble, who was the owner thereof in her own right.

Mrs. Kimble answered that she was, by the said Shook as-her tenant, in possession of the lots under an equitable title adverse to the plaintiffs concluding with averment which tendered her answer a substantial denial of the complaint.

Henry C. Kimble answered that the only plaim he asserted to the lots was an inchoate interest in them as the husband of his co defendant, Mary H. Kimble.

After issue, the court, to which the cause was submitted for trial, made a finding for the defendants, and, after denying a motion for a new trial, rendered judgment accordingly. The only questions made here are such as arose upon, or as were connected with, the evidence.

At the trial the plaintiffs introduced in evidence a judgment which they had obtained against one Herman Link, in the Franklin circuit court, at its November term 1875, also an execution which had been issued on such judgment, with the return showing that it had been levied on the lots in controversy, and that said lots had been bid oft by, and sold to, the plaintifts. Also a sheriff’s deed, executed in pursuance of such sale, conveying the same lots to the plaintifts,

Herman Link, the judgment defendant, was then introduced as a witness by the plaintifts, and testified that he was acquainted with the lots in dispute, that he owned those lots, that he bought the one the house stands on of one Joseph M. Jones, hut the conveyance to it was made to him by Samuel Jones and wife, who were the father-in-law and mother-in-law of Jones; that the other lot was conveyed to him by one William M. McCarty, that he had not the deeds from Logan and wife and McCarty then in his possession, they having been taken away from him from his store where he had kept them, that he had first missed those deeds .several years previously, and did not know where they then were, that he had read those deeds many a time; that he had made search for those deeds at his house where he kept all his papers, and also at his store, but could not find them, that those deeds were warranty deeds and like deeds people always make; that he had paid some consideration for the lots, but could not then recollect what it was; that the Logan deed was made he thought, in 1856, and the McCarty deed perhaps two years later, that when Logan and wife made him a deed they told him it was a deed for the property he had bought of Jones, and Jones told him the same thing; that he could not tell a word that was in the McCarty deed, and did not know what words were necessary to constitute a deed; that Logan and wife told him the paper they gave him was a deed, and it was like other deeds, but he repeated that he did not know what words were necessary to make a deed. Thomas H. Smith, one of the attorneys for the plaintiffs, testified that he had, on their behalf, demanded the possession of the lots in suit of the defendant, Shook, before the commencement of the action, and Shook, who-was also introduced as a witness for the plaintiffs, admitted that such a demand had been made of him.

This was all the evidence given by the plaintiffs in support of their claim to the lots sued for in this action.

In answer to the objections urged by the appellants to certain rulings of the court upon the sufficiency as well as the admissibility of some of the evidence offered by the appellees, it is maintained by the appellees that the evidence set out as above, did not make a case entitling the appellants to recover in this action, and that hence it is not material to inquire whether the defense set up by the appellees was sustained by either proper or sufficient evidence.

It is an ancient and invariable rule that in actions of this kind the plaintiff must recover, if at all, on the strength of his own title.

It is also well settled that in an action by a purchaser at a sheriff’s sale against the execution defendant, it is sufficient to show the judgment, the execution, the sale and the sheriff’s deed, but where the action is against a party other than the execution defendant, it must be shown, in addition, that the execution defendant had title in the premises to which the judgment lien attached. Tyler on Ejectment, 177—Carpenter v. Doe, 2 Ind., 465.

It was consequently incumbent on the appellants in this case to show, in addition to the judgment, execution, sale and sheriff’s deed, that Link had title to the lots on which the judgment lien became operative.

This the evidence clearly failed to do.

It was not enough to give' evidence of conveyance to Link by Logan and wife and by McCarty.

Proof of title in the grantors respectively was, also, necessary to render those conveyances effectual as evidence of title in Link. Huddleson v. Link, 47 Ind., 498.

As has been seen, nothing was introduced by the appellants even tending to prove either title or claim of title in Logan or his wife in the one case, or in McCarty in the other.

As to that material point in the evidence, necessary to enable the appellants to maintain their action, there was a total failure of proof.

We are, therefore, of the opinion that the finding of the court below was right on the evidence.

The appellants complain that some evidence offered by them was improperly excluded. The evidence, thus offered and excluded, had, however, no relation to that branch ot the appellant’s case upon which there was a failuere of proof as above indicated.

If, therefore, the proffered evidence had been admitted it would not have supplied the fatal defect in the evidence upon which the appellants relied for a recovery, and hence no substantial injury was, in any event, inflicted upon the appellants by its rejection.

The judgment is affirmed with costs.