36 Ind. App. 441 | Ind. Ct. App. | 1905
Appellees—except Edward D. Thomas— were plaintiffs below, and appellant and said Thomas were defendants. In their complaint plaintiffs averred that they and appellant were owners in fee simple, as tenants in common, of certain real estate, which is specifically described; that plaintiffs derived their title as heirs of Erasmus D. Thomas, who died seized of certain real estate; that said Edward was a son and heir of decedent, and that his interest in the real estate had been divested by a judicial sale, and appellant had acquired such interest by deed from the sheriff; that decedent had made certain advancements to his children, specifying the amount made to each, and that said advancements to Edward aggregated $556. They ' further averred that the real estate was not susceptible of
Other questions are presented by the record, but from the conclusion we have reached upon the action of the court in sustaining the demurrer to the second, third and fourth paragraphs of answer, all subsequent rulings of which appellant complains need not be considered.
In his second paragraph of answer appellant avers that for more than six years he had been the owner by purchase ■ of the undivided two forty-fifths of said real estate, and that the rental value of all of said real estate, over and above the taxes and other expenses incident to keeping up
In the third paragraph of answer it is alleged that at the time of the death of the decedent certain of the heirs (appellees herein) were indebted to the decedent for moneys loaned to them, specifying the persons and amounts each was indebted, respectively. It is further alleged that no administration on the estate of the decedent was had, and that said several amounts are due and owing said estate. The prayer of this paragraph is that the several amounts so owing by appellees should be taken into account, and that the proceeds of sale of the real estate be distributed accordingly.
In the fourth paragraph of answer it is alleged that the decedent left a personal estate of the value of $3,000 over all indebtedness; that no administration on his estate was had; that appellees• took possession thereof and converted the same to their own use; that appellant acquired the interest of Edward D. Thomas in said real estate more than six years ago; and that he is entitled to have an accounting of the personal estate of decedent, and have the proceeds-thereof taken into consideration in making the distribution of the funds arising from the sale of the real estate. The prayer of this paragraph is that the appellees be required to account for all of such personal estate, and that it be taken into account in making the distribution, etc.
It is the rule both in this country and in England that in a proceeding for partition a court of equity will, in a proper case, require one cotenant, who. has been in the exclusive possession of the common property, or of more than his portion thereof, or has received rents and profits therefrom, to account for the shares to which his cotenants are entitled. 21 Am. and Eng. Ency. Law (2d ed.), 1171, and authorities there cited. The case of Peden v. Cavins (1893), 134 Ind. 494, 39 Am. St. 276, is in point, and squarely decides the question. See, also, Freeman, Cotenancy and Partition (2d ed.), §512, where it is said: “When equity has jurisdiction for partition, no obstacle exists to its proceeding to do complete justice, by compelling an accounting for all rents received; and nothing better than expense and delay can result for requiring one suit at law for mesne profits and another in equity for partition.”
The law regards with much favor the early adjustment of legal and equitable controversies, and the rule prevails that all matters which might have been litigated and determined under the issues will be conclusively presumed to have been litigated. Beaver v. Irwin (1893); 6 Ind. App. 285. As appellant had a legal right to his share of the rents and profits of the real estate, which appellees, while in exclusive possession, appropriated to their own use, he
The fourth paragraph avers that Erasmus D. Thoma's died'and left a personal estate of the value of $3,000 over and above all indebtedness, etc.; that there was no administration on his estate; that appellees took possession of the same and converted it to their own use; that by purchase appellant has been the owner of all the interest of Edward D. Thomas for more than six years, by reason of which he is entitled to have an accounting of the decedent’s personal estate, and have the proceeds thereof taken into consideration in making the distribution of the proceeds of the real estate. Appellees in their complaint for partition aver advances to certain of the appellees, and proceed upon the theory that they have a right to have such advancements taken into consideration, to the end that there may be an equal distribution of the proceeds of the sale of real estate. The rule is that, in proceedings between heirs of a decedent for partition of his real estate, the court may and should take into account the advancements made by the decedent to some of the heirs, by requiring that such advancements be brought into hotchpot and adjusted so that all the shares will be equal. 21 Am. and Eng. Ency. Law (2d ed.), 1173. It has often been held that advancements should be taken into consideration in decreeing partition. Kepler v. Kepler (1850), 2 Ind. 363; New v. New (1891), 127 Ind. 576; Scott v. Harris (1891), 127 Ind. 520; Purner v. Koontz (1894), 138 Ind. 252.
Both by the letter and spirit of -the statute cited, advancements to heirs should be equalized, if possible, out of the personal estate of the common ancestor, and appellant had a right to invoke this rule of law. As appellant stands in the .place and acquired the rights of Edward D. Thomas in the real estate, he has a right to have his interest therein, or the proceeds thereof, come to him unburdened by the advancements to his grantor, if he can establish the facts he has pleaded.
Our conclusion is that none of the three paragraphs of answer were vulnerable to the attack of the demurrer. The judgment is reversed, and the trial court is directed to overrule the demurrer to the second, third and fourth paragraphs of answer, and for further proceedings not inconsistent with this opinion.