68 Ind. App. 320 | Ind. Ct. App. | 1918
Judgment was rendered against appellants by reason of their election not to plead further on the overruling of their demurrers filed to the
Appellants are heirs at law of Creszentia Auer, deceased, appellants Mary Buckel, Frances Peak, Amelia Toepp and Joseph C. Lauber being children of her first marriage, and the other appellants George Lauber, Jr., and Amanda Lauber being children of her deceased son, George Lauber, who died before her decease.
Appellees other than PuShane, administrator, are collateral kindred and heirs at law of Charles Auer, who was Creszentia Auer’s second husband. Creszentia Auer diéd in 1891. Charles Auer died in 1913. Appellee PuShane is administrator of his estate.
The complaint was in three paragraphs, each of which was lengthy. For purposes of the consideration of the substantial questions presented by the briefs, the first and third paragraphs were to the effect that at the time of the decease of Creszentia Auer she held in her own name the record title to a number of tracts and lots of land situate in St. Joseph county, Indiana; that, while the record title to such lands stood in her name, she in fact held such lands in trust and as trustee in trust for appellants; that such trust in lands arose from the averred fact that a number of years before her decease, Creszentia purchased such lands with money which she held by implied trust for appellants, taking title in her own name.
The second paragraph of complaint differed from the first and third in the following respects: It described as purchased and held in trust a single rather than a number of tracts of land. It alleged that
It was not averred in any paragraph of complaint that Creszentia held the described lands, or the money with which it was alleged that the purchase' was made, under a direct or express trust. No paragraph of complaint classified the alleged trust as express or implied, direct, resulting, or constructive. Appellants in their brief state that from the facts averred a resulting trust arose. The complaint contained no averment of fraud, bad faith or concealment. By the complaint appellants sought to quiet their title to the lands described in the respective paragraphs of complaint against appellees’ alleged claim to the one-third thereof, it being alleged in effect that appellees claim that on the decease of Creszentia such one-third descended to Charles Auer as surviving husband and from him to them as heirs at law.
The sixth and seventh paragraphs of answer were directed to the first paragraph of complaint, the eighth and ninth to the second paragraph, and the tenth and eleventh to the third paragraph. In their relation to questions presented and controverted by the briefs, each of these paragraphs, although differing from the others somewhat in phraseology, was to the effect that Creszentia Auer more than twenty years before the bringing of this action, appellants
We first direct our attention to tbe element of tbe second paragraph of complaint to the effect that Charles Auer, on January 12, 1872, quitclaimed to appellants the lands in -such paragraph of complaint described. It will be remembered that such deed did not purport to release to appellants any particular or specific interest in the lands described. There was no reference to any interest in the lands that might ripen into, a present estate on the death of Charles Auer’s wife. The language of the deed was general; simply that Charles Auer quitclaimed to appellants the involved lands, describing them. The wife, as we have said, did not join in the execution of the deed.
Appellants argue, however, that a husband’s interest in his wife’s real estate during her life is similar to a wife’s interest in her husband’s real estate during his life, and that in each case, while such interest is inchoate, yet that it is sufficiently substantial to be conveyed by a quitclaim deed, although not specifically mentioned therein, and that when so conveyed such interest ripens -into title in the grantee to such deed where the grantor survives his spouse.
It appeared from each of the paragraphs of answer now under consideration that more than twenty years before the beginning of the action, Creszentia Auer openly repudiated the alleged trust, and that by her last will and testament she disposed of the involved lands as her own, and that appellants had knowledge of the fact at the time. It results that, for purposes of this case, it must be taken as true that appellants’ cause of action accrued and the statute commenced to run against it more than twenty years before the commencement of the action. Appellants here contend merely that the' statute of limitations does not run against such a trust as is outlined by the complaint.
Of the answers under ■ consideration there were paragraphs directed to each paragraph of complaint to the effect that Creszentia Auer, more than twenty years before the beginning of the action, repudiated the alleged trust, and that thereafter, and for more than twenty years, Charles Auer and his representatives held the lands involved adversely. These answers were sufficient. It results that the judgment must be affirmed.
Judgment affirmed.
Note. — Reported in 120 N. E. 437. See under (2, 3) 16 Cyc 688, 699; (4) 21 Cyc 1411; (5) 19 C. J. 521.