Hall v. Durham

*437On Petition eor a Rehearing.

Niblack, J.

A brief accompanying a petition for a rehearing, filed in this cause, calls our attention specifically to an instruction contained in the bill of exceptions, which, in effect, directed the jury to find a verdict for the plaintiff. Our attention was not so called at the former hearing, and hence we fell into the error of assuming that the bill of exceptions did not show that such an instruction had been given. Our mistake in that respect only requires us now to consider whether the circuit court erred in giving such an instruction upon the facts as presented by the evidence. The recognized rule on the subject is, that where the controlling facts are admitted, or are not controverted in any essential respect, it is not error for the court to instruct the jury what their verdict should be. Adams v. Kennedy, 90 Ind. 318; Carver v. Carver, 97 Ind. 497; Wabash R. W. Co. v. Williamson, 104 Ind. 154.

Eor the reasons given in the principal opinion, the circuit court did not err either in the admission or rejection of evidence, and, upon the evidence admitted, the circuit court was, as we believe, justified in instructing the jury that the verdict should be for the plaintiff. So long as the judgment quieting the title of the plaintiff in the land in controversy shall remain unreversed or unmodified, we are unable to see how in this action a verdict for the defendants below could be sustained.

Counsel assert, in argument, that the appellee’s claim to the land in suit originated in a tax sale for a comparatively small sum of money, and that the demand for possession of the entire tract is not only unconscionable but cruel under all the circumstances. If this be true, then we greatly regret our inability to afford some relief. But the justice of the appellee’s original claim or title to the land is in no manner before us. That was a matter which ought to have been *438litigated, if at all, in the action to quiet title in -winch the appellants, for some unexplained reason, made default.

It is still insisted that the circuit court erred in not permitting the witness, Hall, to testify that the appellee’s claim to the land had been compromised and adjusted, upon the ground that in actions like this all defences are admissible under the general denial. But there was, as has been stated, no statement showing that the facts proposed to be proved were such as would have constituted a defence to the action. Hence we have no reason to infer that the evidence excluded would have in any manner tended to establish a valid defence.

The petition for a rehearing is overruled.

Filed Feb. 25, 1887.