101 Ind. 491 | Ind. | 1885
The appellee presents two questions of practice which require attention before considering the other questions in the case.
The first question is settled against him by the cases of Trentman v. Eldridge, 98 Ind. 525, and Western Union Tel. Co. v. Trissal, 98 Ind. 566. These cases decide that where there is a special finding in the record, and the record shows that it was made upon request of one of the parties, the court will presume that the request was properly and seasonably made, unless the record affirmatively shows the contrary.
The special finding in this case is preceded by what appears to be a general finding, but this finding forms part of the same entry as that in which the special finding is ineorjiorated, and we think that it can not be regarded as an independent general finding. It is, in truth, a mere preface to-the special finding. The entry is a clumsy one, but, as the proceeding was an entire and indivisible one, there exists no just reason for depriving the appellant of the benefit of the special finding. The whole proceeding is embodied in one-entry, and took place at the same time, and no substantial error was committed in prefacing the special finding by the-general one; at all events, the court could not, by such a procedure, take from the appellant the rights resulting from his exceptions to the conclusions of law. We need not inquire-what the rule would be, if there had been an independent general finding, preceding the special by a considerable interval of time, for here there was no interval at all; there was. really but one finding and one entry. Smock v. Harrison, 74 Ind. 348, vide p. 355.
We have given only a brief synopsis of the facts stated in the special finding, but it is full enough to show the general features of the case. It is quite clear that the trial court erred in pronouncing the law against the appellant as to the
The administrator’s sale and deed certainly did not convey to the appellee the interest of Elizabeth Stephens as widow, although it did, perhaps, convey the interest she acquired by purchase from the children of her deceased husband’s father,, for where a party purchases from the heirs of a deceased person other than the widow, he takes the land subject to the lights of the creditors of the decedent. The interest vested in her as widow was conveyed to the apj>ellant by the sale made upon the foreclosure of the mortgage, and as to that interest he undoubtedly has the paramount right. The mortgage executed by her covered the. entire property, and as her interest as widow was not subject to her husband’s debts, the mortgage, as to that interest, was clearly effective, however it may be as to the interest bought of the heirs of the father of her deceased husband.
We think it will secure a more satisfactory result to remand the case for a new trial than to direct judgment on the special finding, and we accordingly reverse the judgment, with instructions to sustain appellant’s motion for a new trial.