54 Ind. 65 | Ind. | 1876
In this cause, appellant was plaintiff, and appellees were the defendants, in the court below. The appellee Watson demurred separately, and the other appellees demurred jointly, to appellant’s complaint. The ground of objection to the complaint, in both demurrers, being the want of sufficient facts to constitute a cause of action. These demurrers were sustained by the court below, and to these decisions appellant excepted, and refusing to amend further, judgment was entered upon the demurrers in favor of appellees and against appellant.
In this court, appellant has assigned, as error, the decisions of the court below, in sustaining appellees’ demurrers to her complaint.
Appellant’s complaint is very long, but we will summarize its material facts as briefly as we can. It is alleged, in substance, that prior to 1844 appellant was the lawful wife of one Samuel Hill; that during the existence of their marriages, said Samuel Hill was the owner in fee simple of the real estate in Knox county, Indiana, thus described: the northeast half of lot No. 84, in the city of Vincennes, according to the numbering of lots on the plat of the survey of the old borough of Vincennes, made by Johnson and Emison, situate on the south corner of Second and Busseron streets, in said city, and being such owner, he died at said county, leaving appellant as his widow, prior to 1844; that on a judgment against said Samuel Hill, the said real estate had been sold and conveyed by the sherifl to one Samuel Judah, and under said sheriff’s sale and deed, said Judah took
“Patsey, the widow of Samuel Hill, late of Knox county, now deceased, having entered into an' amicable arrangement by which the right of the said Patsey Hill to dower in certain property, now in possession of,said Judah, lying in the borough of Vincennes, on the corner of Second and Busseron streets, formerly owned by the said Samuel Hill, was referred to William Burtch and Robert N. Carnan; and the aforesaid parties, Patsey Hill, by her attorney Eauntleroy, and Samuel Judah, appearing and agreeing to the amount of dower assessed by the said referees as justly due the said Patsey Hill, it is therefore ordered, adjudged and decreed by the court, that the said Patsey Hill is entitled to have and receive the sum of fifteen dollars per year from the 13th day of January, 1844, in lieu of dower in the said parcel of ground above mentioned, to be paid during her lifetime, on each 13th day of January hereafter, into the clerk’s office of this court for her use, and that if said payment shall remain unpaid as aforesaid for the space of thirty days, that then the clerk shall issue a writ, in the nature of a writ of levari facias, to levy said payment, interest and costs, from the rents and profits’ of said premises, and that the said annual payment shall remain a lien on the said premises.”
And appellant then averred, in her complaint in this
The prayer of said complaint was, in substance, that the description of the property, referred to m said judgment and decree, upon which a lien in appellant’s favor for the annual payment of fifteen dollars was decreed, might be. determined and declared by the court to be the same as was first mentioned and set out in said complaint; that the payment of the amount due appellant, on account of her said lien, might be enforced by an order of the court for the sale of the real estate upon which said lien exists, for the purpose of paying the amount due or to become due to appellant on that account, and for all other proper relief.
If the facts stated in appellant’s complaint are true, and as they are well pleaded appellees’ demurrers admit them to be true, then the equities of this cause, in our opinion, are all in favor of the appellant. Prior to the year 1844, appellant was the lawful wife of one Samuel Hill, and during the existence of their marriage, he was the owner in fee simple of a certain parcel of real estate, in the- now city of Vincennes, Knox county, Indiana, particularly described by a full and correct description in appellant’s complaint in this action. Prior to said year 1844, on a judgment against said Samuel Hill, the said
In the entry of said judgment or decree, the property mentioned is loosely described as “ certain property now in possession of said Judah, lying in the borough of Vincennes, on the comer of Second and Busseron streets, formerly owned by the said Samuel Hill.” This description was certainly vague and indefinite; but there was enough certainty about the description to enable the parties or the court, if called on, to render it definite, perfect and certain. Besides being on the corner of Second and Busseron streets, in the borough of Vincennes, two other facts are mentioned which would aid in giving certainty
After the rendition of said judgment or decree, said Samuel Judah continued in possession as owner of said real estate for more than ten years, or until August 24th, 1854, when he sold and conveyed said property, by the full and correct description thereof, first given in appellant’s complaint, by his wai’ranty deed, to one Isaac N. Eastham. In said deed, said Judah saved and excepted appellant’s said judgment lien on said property from the warranty in the deed, by inserting therein this saving clause, “ saving and excepting from such warranty the claim of Mrs. Colman, fifteen dollars per year from March last.”
The judgment or decree of the 3d day of April, 1844, contained a contract of record, between the appellant, by her then name of Patsey Hill, and said Samuel Judah, by which contract said Judah agreed to pay, and appellant agreed to receive, for her dower right in certain premises, and in lieu thereof, an annual payment of fifteen dollars, on a day certain, in each year, during her lifetime. The contract was made in settlement of a pending suit, and was one the parties were competent to make, and was sanctioned and confirmed by the judgment and decree of the court below. Judah contracted that these annual payments should be secured to appellant by a lien on said premises, and this too was sanctioned and confirmed by the decree of the court below. But, in the drafting or entry of said judgment or decree, the description of the
Under such circumstances, the appellees are bound to take notice of the recital and exception in Judah’s deed to Eastham; and, besides, it is averred by appellant that the appellees acquired their title to the property with full knowledge of her said judgment lien thereon as set out in her complaint.
In our opinion, the court below erred in sustaining the demurrers to the complaint, and for this error the judgment is reversed.
Judgment reversed, at the costs of the appellees, and cause remanded, with instructions to the court below to overrule the demurrers to the complaint, and for other proceedings.