Armington v. Armington

28 Ind. 74 | Ind. | 1867

Gregory, J.

— Augustus A. Armington and Aurélian B. Armington filed their complaint in the court below against Clarissa L. Armington and Mary M. Armington, to quiet the title to real estate. A demurrer was sustained to the complaint, and the plaintiffs appeal to this court.

It is averred that the appellants and Adolphus G. and Alpheus N. Armington were the only children and heirs of William Armington, by his wife Clarissa L., both now deceased. That the appellees were the only children of the said William by Gertrude J., a second wife, who is still living. That on the 20th of May, 1844, Clarissa L., the mother of appellants, departed this life intestate; and that afterwards, on the 16th of December, 1850, Misha Golay, her father, conveyed to her children certain real estate in Decatur county in this State, as a part of the share of the mother in his estate, or as an advancement. That afterwards the said William purchased of the United States, in the name of Adolphus G. Armington, the north half of the south-east quarter, and the south-east quarter of the north-east quarter, of section 8, in township 21, range 4, in Tipton county, Indiana. That in consideration therefor, by contract, the latter conveyed his interest in the Decatur county land to the former. That the entire consideration for the Tipton county land was the Decatur county land. That on the first of September, 1864, Adolphus G. Armington departed this life intestate and seized in fee of the Tipton county land.. That on the 1st of December, 1864, Alpheus N. Armington died testate and seized in fee of so much of the Tipton county land as he inherited from his brother Adolphus G.; and that by his last will and testament the appellants became his sole devisees. That Adolphus ff.’and Alpheus N. Armington each died, never having been married, and leaving neither father, mother, wife, or child.

It is claimed that the Tipton county land came to the appellants through their mother, and that therefore, the appellees have no interest therein.

Our law of descents provides that “ kindred of the half-blood shall inherit equally with those of the whole blood; but if the estate shall have come to the .intestate by gift, devise or descent from any ancestor, those only who are of the blood of such ancestor shall inherit.” 2 G. & H. § 6, p. 292.

B. W. Wilson, N. R. Overman and G. W. Lowley, for appellants. T. A. Hendricks, O. B. Hord and A. W. Hendricks, for appellees.

Did the Tipton county land come to Adolphus G. Armington by gift, devise or descent from his grandfather on the mother’s side?

There are cases where a court of equity will follow land, or even money, into whatever shape it may assume in the hands of the holder, for the purpose of upholding an equity; but this doctrine does not apply to the canons of descent; these depend on positive law; there are no equities to uphold. It was a maxim of the law of descent in England, that no person could inherit an estate unless he was descended from the first purchaser or acquirer of it. Under this rule, where a person was seized in. fee by descent, ex parte materna, there were, at the common law, many acts which might be done by such a person that would operate so as to make him a new purchaser of the estate, by which means it would become a feud of indefinite antiquity, and descendable to his heirs generally, whether of the paternal or maternal line. Thus, if a person be seized of lands as heir of the part of the mother, and makes a feoffment in fee, and takes back an estate to him and to his heirs, (by two distinct conveyances in fee,) this is a new purchase; and if he dies without issue the heirs of the part of the father shall inherit. 3 Cruise on Real Prop., Title 29, Descent, ch. 3, §§ 32, 33, p. 337.

"We think it clear that Adolphus G. Armington did not hold the Tipton county land by gift, devise or descent.

It is claimed that the demurrer ought to have been overruled, because the appellants show in their complaint that they have an interest in the land and are entitled to some relief. The sole object, of the complaint is to quiet title. There are no allegations which entitle thé appellants to any other relief. - It is not averred that the appellees claim a greater interest in the lands than they are by law entitled to.

The judgment is affirmed, with costs.