Warbritton v. Demorett et al.

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.

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.

Filed May 20, 1891.

ON PETITION FOR A REHEARING.

COFFEY, C. J.-A petition for a rehearing is filed in this case in which it is urged that this court erred in holding the cross-complaint, filed by the appellees in the court below,

Warbritton v. Demorett et al.

sufficient. While the cross-complaint contains the general allegation that the appellees are the equitable owners of the land in dispute, it is claimed that the specific allegations contradict the general, and must control.

The cross-complaint is entitled, "Samuel N. Warbritton vs. Francis M. Demorett and Phoebe J. Demorett," and so much of it as is material to the controversy here is as follows:

"The above named defendants, Francis M. Demorett and Phoebe J. Demorett, for cross-complaint against the plaintiff, Samuel N. Warbritton, complain of said Warbritton, and say that they are the equitable owners and in the full and complete possession of the following described real estate, in Montgomery county, Indiana: * ** Cross-complainants further aver that he derived his title as follows, to wit: he, defendant, purchased said real estate from William Hubbard, who purchased the same from one Nathaniel Jessup, who purchased the same from one F. M. Watkins, the person from whom cross-complainants derive their title; that the said Jessup purchased the real estate ** from Watkins ** long before the cross-complainants purchased the same real estate from Watkins; that Watkins, at the time he sold to Jessup, put him in ** possession, *** and that Jessup and his grantees * * * have ever since held possession thereof, *** and have made lasting and valuable improvements thereon; that cross-complainants purchased the real estate, while ** Jessup and his grantees were in the possession thereof ** under said purchase from Watkins. * *

Cross-complainants aver that they are the owners of said. real estate, and that said Warbritton is claiming some title thereto, interest in said real estate adverse to cross-complainants' said title; that the claim of said Warbritton is groundless and void, and a cloud upon cross-complainants' title."

This is by no means a model pleading, and the looseness with which it is drawn is without excuse.

Warbritton v. Demorett et al.

The doctrine that general allegations in a pleading are controlled by specific allegations in the same pleading is too familiar to the profession to require citations, but in order to control the general allegations they must be clearly repugnant thereto, and must show that the general allegations are untrue. If the specific allegations in this pleading show that the appellees have no title, then the demurrer thereto should have been sustained, otherwise it should have been overruled. The general allegations are to the effect that the appellees are the equitable owners of the land in dispute, and are in the possession thereof; that the appellant is asserting a groundless claim to the land, which casts a cloud upon the title of the appellees.

Following these general allegations the appellees attempt to give the source of their title.

The claim of the appellant is that in the following allegation, namely, "He, defendant, purchased said real estate from William Hubbard," etc., the word "defendant " applies to the appellant, and not the appellees, and that, this being true, it appears that the appellant has the better title. We think it reasonably certain, when the whole pleading is construed together, that the appellees are attempting to give the source of their own title, and not that of the appellant. It appears from the allegations in this cross-complaint that when Watkins sold to Jessup he placed him in the possession of the land, and that he and his grantees have ever since been in possession. It also appears that the appellees are in possession of the land, so that all the allegations in relation to possession can not be true unless the appellees are to be regarded as making their title through Jessup, and, when so regarded and treated, the allegations are reconciled, and no conflict exists.

We think the pleader by the use of the word "defendant," in the connection in which it is used, had reference to the defendant in the main action, and not to the defendant to the cross-complaint.

The City of Logansport v. Shirk et al.

In the case of Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75, the word "plaintiff" was used where the word “defendant" was intended. In commenting upon the contention that the word "plaintiff" should be read as it was written, this court said: "Merely clerical mistakes, such as the use of one word or one name for another, where, as in this case, there is and can be no possible room for doubt as to which one of two words or names the pleader intended to use, will not and ought not to vitiate the pleading, in any court, under the statutory rule that its allegations shall be liberally construed, with a view to substantial justice between the parties.'" See, also, Landon v. White, 101 Ind. 249.

When we treat the specific allegations in this cross-complaint as being descriptive of the source from which the appellees derive their title, and construe them with a view to substantial justice between the parties, we think there is no such conflict between them and the general allegations as renders the pleading bad.

Petition overruled.

Filed Oct. 15, 1891.

No. 15,648.

THE CITY OF LOGANSPORT. v. SHIRK ET AL.

STREETS.-Opening of.—Appeal to Circuit Court.-Transcript Constitutes Complaint.—Objection.-How Stated.- Recitals in Transcript.—Inconclusiveness of. -In proceedings to open a street under section 3180, R. S. 1881, upon appeal to the circuit court the transcript constitutes the complaint, and the appellant must state specifically in writing the grounds of his objection to the proceedings of the common council and city commissioners, and no other question can be tried or heard, and "issues of law and of fact may be found, tried and determined as in other actions at law." Upon such an appeal, an issue of fact may be raised by an objection that the resolution to refer the matter of opening the street to the commissioners was not adopted by a two thirds vote of the common coun

The City of Logansport v. Shirk et al.

cil, as required by law. The recitals in the transcript to the contrary are not conclusive.

SAME.-City Commissioners.—Referring Back Report to.- What Reference is for.-Assessment of Additional Property.—Invalidity of.-Under sections 3174 and 3189, R. S. 1881, which provide for the referring back of reports to the city commissioners, the reference is for the purpose of readjusting or changing the assessment, or amending or changing the report by the commissioners as to the persons, or property of the persons, previously notified of the proceedings, and it does not contemplate any action on the part of the commissioners which will affect other persons and property. An assessment of additional property by the commissioners upon such a reference is without any authority of law and void. The statute would be void if it had contemplated the assessment of the lands of other persons upon such a reference, for it makes no provision for the giving of notice to them. It is a statute which provides for the taking of private property for public use, and must be strictly construed.

From the Carroll Circuit Court.

Q. A. Myers, M. D. Fansler, J. H. Gould and J. C. Nelson, for appellant.

L. Walker, W. B. McClintic and D. C. Justice, for appellees.

OLDS, J.-The city of Logansport, on the 1st day of December, 1886, enacted a resolution by a vote of its councilmen, referring the expediency of laying out and opening a street, specifically described in the resolution, to be called Erie avenue, to the street committee of the common council.

The matter was reported by the committee as expedient to be referred to the city commissioners, and a resolution of reference to the city commissioners was passed by a vote of the council on December 15th, 1886.

Notice was issued by the clerk to and served upon the city commissioners. The city commissioners filed their preliminary report on January 28, 1887, pursuant to section 3168, R. S. 1881, and also their notice to the city clerk. pursuant to the same section, and notice was given to the parties named in the report as affected.

VOL. 129.-23