48 Ind. 12 | Ind. | 1874
This was an action by the appellant against ’-the appellees. It is stated in the complaint, that the plaintiff
It is further stated, that the plaintiff and the defendants, James, Wyatt, Jesse, and Isabel, were the only children of said Owen Adkins, deceased; that the plaintiff owns one-fifth of said lot, and the said James, Wyatt, Jesse, and Martha Ann Adkins are each the owner of one-fifth thereof.
The plaintiff further alleges that he has paid taxes and made valuable and lasting improvements on said lot to the amount and value of eight hundred dollars, and asks the court to decree the same a lien on the lot. Prayer for partition, etc.
The defendants, James Adkins and Martha A. Adkins, filed" ■an answer and cross complaint, in two paragraphs, as follows:
1. The said defendants,, James Adkins and Martha A. Adkins, for their separate answers to the plaintiff’s complaint and petition herein, as well as for a cross complaint in said action, say, that one Owen Adkins died at, etc., testate, seized in fee of twenty-one acres of land, situated in, etc., and personal property of the value of five hundred dollars, leaving as his widow Elizabeth Adkins, now deceased, and the plaintiff and defendants other than said defendant Martha A. Adldns, wife of said James, as his children and heirs at law; that by the terms of his will, the said Owen Adkins, deceased, bequeathed and devised to said Elizabeth his entire estate, real and personal, for and during her natural life, for her .maintenance and support, as far as necessary, and at her death, if there should be any residue, the same was to be equally divided among the children alive at the death of his widow; that after the death of said Owen Adkins, the plaintiff pretended to become the executor of said will, or administrator of said
• 2. That Owen Adkins died testate, at, etc., leaving Elizabeth Adkins, his widow, and the plaintiff and defendants as his children and heirs, seized in fee of twenty-one acres of valuable land, in, etc., and possessed of personal property of the value of five hundred dollars; ail of which real and personal property he devised and bequeathed to his said wife, for and during her natural life, etc., the residue to go to his surviving children; that soon after the death of said Owen, the plaintiff pretended that he had been appointed administrator of said estate with the will annexed, and that he had caused the said will to be probated, and thereupon took possession of the personal property, sold the same, and converted the proceeds to his own use, amounting to six hundred dollars, and has not accounted for the same; that, in fact, he never was appointed administrator, nor did he prove the will, but fraudulently destroyed the will, or caused it in some manner to be made way with; of all which said Elizabeth and the children, other than plaintiff, remained ignorant for many years; that afterward it was agreed between plaintiff and the other children, that they would join with their mother in the conveyance and sale of said real estate, and with the proceeds purchase a home in the town of Bloomington, in said county, for
The plaintiff demurred separately to the paragraphs of the answer and cross complaint, because, as he alleged, they did.
The demurrers were overruled, and the plaintiff excepted.
Reply by general denial. There was a trial by jury and a verdict for the defendant Martha A. Adkins, on the cross-complaint.
A motion for a new trial was made by the plaintiff, and' overruled by the court. Einal judgment was rendered for the-defendant Martha A. Adkins.
Two errors are properly assigned :
1. Overruling the demurrers to the paragraphs of the answer;; and,
2. Refusing to grant a new trial.
The complaint- states two grounds for relief: 1st. It asks-for partition of the lands; and, 2d. It asks for payment of the sum of eight hundred dollars, expended for improvements-made on the land, and for taxes paid thereon.
The first paragraph of the answer and cross complaint, conceding that it shows a sufficient reason why the plaintiff should not have partition, and why he should not recover for the-money paid for improvements, wholly fails to show any reason why he should not recover for the amount paid for taxes. It-states, “that the money paid by the plaintiff to improve said property was the money of the estate of said Owen Adkins, deceased.” Nothing is said as to the part of the plaintiff’s-claim arising out of the payment of the taxes. The paragraph is liable to the objection that it attempts to answer the whole-cause of action, and answers only a part of it.
The alleged last will and testament of Owen Adkins was never probated, as is admitted on both sides. Although dates-are omitted, it is probable that Owen Adkins died before the statute of 1852, giving the widow a fee simple, took effect.
It, appears, therefore, that the widow had only a dower interest in the twenty-one acres of land.- The town lot was-conveyed to the heirs of Owen Adkins, without any express-mention of the widow. She was, however, allowed to use and
The first paragraph of the answer is relied upon as showing that the mother of the plaintiff and the defendants were induced by fraud to join in the conveyance of the twenty-one acres of land. What circumstances are alleged to show the fraud? It is alleged that the plaintiff “went to his mother and falsely and fraudulently represented that it would be greatly to her interest to join with said children in conveying said real estate of said deceased, the plaintiff representing to her that he had procured the consent of the other children to such sale; that the money for which the land would be sold should be used in buying her, the said Elizabeth, a good and •comfortable home.”
As to so much of this allegation as relates to the opinion-expressed by the appellant, that it would be greatly to his mother’s interest to join in the deed, it cannot amount to a fraud on her, because it was merely an opinion, and not a statement of a fact. Bish v. Bradford, 17 Ind. 490. We do not see how the children, other than appellant, could have been defrauded by this representation, for the same and also for another reason. They were of the same opinion, and united in the deed to carry the plan into effect, and it is nowhere alleged that such an arrangement was not, as it was represented, greatly to their mother’s interest.
As to the part of the allegation which relates to what he would do with the money, it was a promise, and not a representation, and did not tend to show a fraud. Fouty v. Fouty, 34 Ind. 433. In our opinion, the court should have sustained the demurrer to this paragraph of the answer and cross complaint. We suggest the inquiry whether this cross complaint should not have shown with greater certainty against whom it was filed.
The second paragraph proceeds on the ground of estoppel. We are of the opinion, that it cannot be sustained on this ground. It states that the plaintiff pretended that he had been appointed administrator, etc., but to whom he made such pretence, or in
The alleged agreement on the part of the plaintiff, that he would cause the lot to be conveyed to his mother in fee simple, appears from the allegations to have been made by the plaintiff with the other children, and not with the mother. This is no ground for an estoppel. If the plaintiff did not .perform this promise, the remedy would be upon the contract, if there is any remedy.
The questions which counsel attempt to present under the second assignment of error cannot be decided. The motion for a new trial was overruled on the 9th day of June, 1873, and ninety days were given in which to file the bill of exceptions. It was filed on the 13th day of September, 1873. After the first named date, there were twenty-one days in June, there were thirty-one in July, thirty-one in August, and thirteen in September, making, until the bill of exceptions was filed, ninety-six days. This was too late.
The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrers to the paragraphs of the answer and cross complaint, and for further proceedings.