Holman v. Elliott , 86 Ind. 231 ( 1882 )

Woods, C. J.

This case is here, as once before, upon an exception to the conclusion and judgment of the court upon •a special verdict. See Holman v. Elliott, 65 Ind. 78. Since the taking of this appeal the death of Sanford Elliott, the appellee, has been suggested, and the names of his heirs at law have been substituted. Dallas S. Holman alone appeals, his co-defendants Derringer having disclaimed any interest, and Rowland W. and Cornet J. Holman having declined to join in the appeal.

The action was in ejectment, the complaint being in the usual form, for the recovery of six tracts of real estate, of which the defendants are alleged to have had and held wrongful possession. The defendants Holmans joined in a plea of general denial.

The finding shows that on and prior to the 1st day of August, 1867, Jesse L. Holman, the father of the defendants, was the owner in fee simple of four tracts of land described in the complaint, which, on the 19th day of the same month and year, he conveyed to his sons Rowland and Cornet, two tracts to one, and two to the other, and on the same day conveyed the other two tracts described in the complaint to the appellant, Dallas; and that' these conveyances were made with the intent, on the part of the grantor and grantees, to cheat, hinder and delay the creditors of the grantor, and especially for the purpose of cheating the plaintiff, the said Jesse L. Holman not retaining and having sufficient other property subject to sale on execution for the payment of his debts; that, on the 14th of August, 1867, the said Sanford Elliott had commenced an action against said Jesse L. Holman and John and Henry Yater, wherein, on the 27th day of the same month and year he recovered a judgment against the sa’id defendants for the sum of $1,827.03, and costs, upon which, on October 10th, 1867, execution was issued, and the said John and Henry Yater being then, as at the date of the judgment, insolvent, the execution was levied upon some of the lands described in the complaint, and by virtue of the levy so made the said lands were afterwards sold and conveyed by the sheriff to the said Sanford Elliott.

For the purpose of disposing of this appeal the foregoing is a sufficient’ statement of the verdict.

“The defendants, each separately for themselves and together,” moved “for a judgment for costs against the plaintiff” upon this verdict, and saved an exception to the adverse ruling; and thereupon, on motion of the plaintiff, the court gave judgment in his favor for the recovery of all the lands described in the complaint, to which ruling and judgment the defendants excepted.

The appellant insists that the verdict does not support a. judgment against him, because it does not show that Jesse L. Holman was the owner or had title to the two tracts of land con- . veyed to him, and consequently fails to show that the plaintiff, who could recover only on the strength of his own title, had, by virtue of his purchase at the sheriff’s sale, acquired title. If this construction of the finding be conceded, it does not avail the appellant.

By appearing and pleading to the action, though by a denial, the defendants admitted that at the commencement of the suit they were each and all in possession of ail the lands sought to be recovered. R. S. 1881, sec. 1056; Applegate v. Doe, 2 Ind. 169; Voltz v. Newbert, 17 Ind. 187; Rucker v. Steelman, 73 Ind. 396. This admission is not, even if it could have been, affected by anything stated in the verdict. The fact that on the 19th day of August, 1867, Jesse L. Holman had conveyed two parcels to the appellant was not proof, and tended with no certainty to show what part or interest he claimed when the suit was brought; and as the burden of proof was not on the plaintiff in this respect, the silence of the verdict on the point does not impair his right of recovery. Graham v. State, ex rel., 66 Ind. 386; Jones v. Baird, 76 Ind. 164. It follows, notwithstanding the appellant’s objections, the plaintiff had a right to judgment against all the defendants Holmans for the recovery of four of the tracts of land in dispute, together with the costs of suit. If the appellant had desired to present the question whether or not upon the facts found there could be a recovery of the two tracts conveyed to him, he, or he and his co-defendants, should have moved, for judgment against the plaintiff in respect to those tracts, or should have excepted specially to the judgment in favor of the plaintiff in so far as it affected or included them. The objections made and the exceptions shown by the record do not raise the question. The rule has been often declared that particular objections to judgments not wholly wrong must be pointed out, else the objection will be deemed to have been waived. Merritt v. Pearson, 76 Ind. 44, and cases cited.

Judgment affirmed, with costs.