Bowen v. Preston et ux.

giving and refusing to give the instructions hereinbefore set

out.

It is also insisted by counsel for appellant, that the court erred in excluding from the jury a deed from William R. Bowen and wife for the land in question, dated 19th of May, 1825, to Rankin, Mollin, and Gallop. It is claimed that the deed was admissible, for the purpose of showing that Rankin, Mollin, and Gallop derived their title from William R. Bowen, who was a joint owner with Samuel S. Bowen, and that such persons held the possession of said premises as tenants in common with Samuel S. Bowen, and that consequently the statute of limitations did not run against Samuel S. Bowen.

The law is thus stated by Preston: "It is also a rule of law that the seizin of one joint tenant is the seizin of his companions as well as of himself. The same rule is applied to coparceners and tenants in common. The possession of one of them is constructively the possession of all; and hence it seems to follow, that possession or seizin of one will be the seizin of others as against all strangers; and the possession of one will constructively be held for the benefit of himself and of his companion. To disseize his companions there must be an actual ouster, or there must be such acts as are constructively equivalent to an ouster; as the denial of right to the rent of any part, or the possession of any part, of the land, or an exclusive possession for a long time, so as to afford the presumption of a disseizin." See Manchester v. Doddridge, 3 Ind. 360; Jenkins v. Dalton, 27 Ind. 78.

"It was agreed by the parties, in open court, that the defendants claiming under Stewart Mollin, John Rankin, and Alexander Gallop, have been in the quiet and undisturbed possession of the premises in controversy since May the 2d, 1825, claiming the same by hostile title."

Now conceding, without deciding, that a conveyance from William R. Bowen and wife to Rankin, Mollin, and Gallop constituted them tenants in common with Samuel S. Bowen, the admission made upon the trial, before the deed in question was offered in evidence, conclusively shows that the possession

Pierce et al. v. Baird.

of Rankin, Mollin, and Gallop, and those claiming under them, had been exclusive and hostile to the said Samuel S. Bowen and all the world, from the 2d day of May, 1825, down to the commencement of the action, which was on the 9th day of July, 1872, a period of about forty years. Under such admission, the presumption of a disseizin could not be overcome by proof that Rankin, Mollin, and Gallop derived their title from William R. Bowen. The deed is in the record, and from it it appears that William R. Bowen and wife assumed to and, as far as they had the power, did convey the entire estate in, and title to, the land in controversy. This would rather tend to weaken than strengthen the presumption that the grantees were holding as tenants in common with Samuel S. Bowen. Construing the admission and the deed together, we cannot perceive how the appellant was injured by the exclusion of such deed.

There are other questions discussed by counsel, but as the conclusion which we have reached on the principal question is decisive against the right of the appellant to recover in this action, no useful purpose would be accomplished by considering and deciding them.

The judgment is affirmed, with costs.

PIERCE ET AL. v. BAIRD.

PLEADING. Certainty in.—If, in a complaint to recover for personal services, the date at which they were rendered is not definitely stated, the remedy is by motion to make the complaint or the bill of particulars more specific.

From the Tippecanoe Circuit Court.

R. P. Davidson and J. C. Davidson, for appellants.
J. H. Adams and S. P. Baird, for appellee.

Pierce et al. v. Baird.

DOWNEY, J.-This was an action by the appellee against the appellants, and there was judgment in the circuit court for the plaintiff.

Two errors are assigned in this court:

1. That the complaint does not state facts sufficient to constitute a cause of action.

2. That there is no valid or sufficient judgment against the defendants.

The last alleged error might be a good reason why the appeal to this court should be dismissed, since it is not easy to see why the appellants should be clamoring and seeking to reverse a judgment which has no validity. We will treat it, however, as a mere make weight, and consider the other alleged error.

The complaint is as follows, omitting the usual commencement:

"The plaintiff complains of the defendants, and says that the defendants are indebted to him in the sum of three hundred dollars, for personal services rendered by the plaintiff to the defendants, the particulars of which are set forth in an account herewith filed, which said sum is due and unpaid, for which the plaintiff demands judgment."

The complaint is signed by the attorneys of the plaintiff. The bill of particulars is as follows:

"George Pierce and John W. Jamison, "To Zebulon Baird, Dr.:

"To legal services rendered in the April and October terms of the Tippecanoe Circuit Court, in the case of themselves v. John Doffin and others, to set aside a fraudulent mortgage, two hundred dollars ($200.00)."

66

It is said in the brief of counsel for appellants, that the complaint is wholly insufficient, in its statement of parties, time, services, kind of services, date, etc." We think there is no merit in these objections. If the date at which the services were rendered should have been more definitely stated in the bill of particulars, a motion would have been the appropriate remedy.

Durland v. Findlay et al.

The judgment is affirmed, with ten per cent. damages and

costs.

JOHNSON ET AL. v. IKERD, ADMINISTRATOR.

From the Lawrence Circuit Court.

G. Putnam, G. W. Friedley, and H. C. Duncan, for appellants.

N. Crooke, for appellee.

BUSKIRK, C. J.-This was an action by the appellee against the appellants, upon two promissory notes. There was judgment for the appellee, upon the default of the appellants. There was no application in the court below to set aside the default, and consequently no question is presented for decision. Fisk v. Baker, 47 Ind. 534. The judgment must be affirmed. The supersedeas having been set aside upon the motion of appellee, no damages can be assessed.

The judgment is affirmed, with costs.

DURLAND v. FINDLAY ET AL.

From the Jackson Circuit Court.
W. K. Marshall, for appellant.
B. H. Burrell, for appellees.

DOWNEY, J.-The errors alleged in this case are the overruling of demurrers to the third and fourth paragraphs of the amended answer. The last amended answer is not set out in the record, and the record contains no demurrer to any answer. We can decide nothing in this condition of the record. The judgment is affirmed, with costs.

The Baltimore, etc., R. R. Co. v. Highland.

THE BALTIMORE, PITTSBURGH, AND CHICAGO R. R. COMPANY v. HIGHLAND.

RAILROAD.- Waiver.-Vendor and Purchaser.-Injunction.-When a landowner enters into a written contract with a railroad company to sell and, within a specified time, to convey to such company a strip of ground for her road bed, and gives possession to the purchaser, who thereupon proceeds to construct her road through such land, the vendor can not enjoin the use and possession thereof by the railroad company, when the latter is not in default in performing the terms of the contract. By the agreement to sell and convey, the seller waives his constitutional right to have his damages assessed and tendered before possession can be taken by the railroad company.

From the Porter Circuit Court.

S. I. Anthony, F. Church, A. Gurney, and S. E. Perkins, Jr., for appellant.

BUSKIRK, C. J.-This was a proceeding by the appellee against the appellant, to obtain an injunction restraining the appellant from retaining the possession of, and constructing its road over and across, certain described land.

The case made in the pleadings and by the evidence was this: The appellee, on the 18th day of August, 1873, was the absolute owner and in possession of the premises described in the complaint. On that day, the appellee and the appellant entered into a written agreement, whereby the appellee, for and in consideration of the sum of two hundred dollars, to be paid in thirty days therefrom, and the benefits to accrue to him, agreed to sell to the appellant a strip of land one hundred feet wide, extending entirely through said tract of land, for a road bed; that the said appellee placed the appellant in possession of said strip of ground; that the appellant immediately thereafter took possession and removed therefrom the timber, and constructed a road bed; that the appellee, by said agreement, was required to execute and deliver to the appellant, within thirty days, a deed for said strip of ground, but had failed to do so; that the appellant was ready and willing to pay the appellee the said sum of two hundred dollars whenever the deed was tendered for such strip of ground.