53 Ind. App. 525 | Ind. Ct. App. | 1913
On August 17, 1909, appellee Fannie C. Yinnedge, filed in the Tipton Circuit Court her complaint in two paragraphs against the appellants, Evaline Y. Darby, the Assets Realization Company, John P. Kemp, Michael Bath, as treasurer of the city of Tipton, John F. Barlow, as auditor of Tipton County and Leonard Compton as treasurer of said county. In the second paragraph of her complaint she averred in substance: that she and Samuel J. Yinnedge were then and for more than thirty years prior thereto had been husband and wife; that on April 13,1897, and for sometime prior thereto her husband was the owner of lot one in block fourteen in the original plat of the city of Tipton; that on said day her said husband, she joining with him, conveyed said lot to Carl Kimball, who, on March 9, 1906, his wife joining with him, conveyed said lot to Lou Cottingham; that afterwards Evaline Y. Darby and the Assets Realization Company commenced an action in said court against Samuel J. Vinnedge to recover judgment against him and subject said lot to the payment of such judgment on the ground that each of said conveyances were fraudulent as against the creditors of said Yinnedge, to which action the said Kimball and Cottingham were each made defendants; that on September 26, 1907, the court found and adjudged in said action that there was due Evaline Y. Darby $2,486.86, and that there was due the Assets Realization Company $3,481.75 from said Samuel J., that said conveyances were each fraudulent and void, that said judgment was a lien on said lot, that said conveyances be set aside
The first paragraph differs from the second in that it contained averments showing the existence of a tax lien on said lot when appellee’s part was set off to her, and a sale by the county treasurer to satisfy such lien, the claims of the defendants on account of such lien and such sale and that such claims were a cloud upon plaintiff’s title. The additional relief appropriate to such averments was asked.
Michael Bath, as treasurer of said city and Barlow as auditor of said county permitted judgment to go against them by default. The appellants, Darby, the Assets Real
The demurrers of Darby and the Assets Eealization Company were each overruled as to each paragraph of complaint and exceptions properly saved. The appellants Darby and the Assets Eealization Company then fifed their joint and separate answer to that part of the complaint seeking to free appellee’s part of said lot from the assessment for the improvement of West Madison Street in the town, now city of Tipton, in which answer they admit the averments of the complaint with references to the conveyances of said lot, and the setting aside of the same as fraudulent; that they, said appellants, acquired their title through such sale, and that appellee holds her title to the part of said lot set off to her as the wife of Samuel J. Vinnedge. The answer then avers in substance that the assessment lien for 'the improvement of said street ivas created by said city under the general provisions for the improvement of streets in cities and towns in force in this State in 1905; that during the year 1905 and for more than eight years prior thereto, said lot appeared in the name of Lou Cottingham and stood upon the tax duplicates in said city and county for taxation in said name; that during the-time that all the proceedings were being had in connection with said improvement, said lot was in the hands of said Lou Cottingham and all notices in connection with said proceedings were served on her; that the waiver entitling the owner to the privilege of paying such assessment in installments was signed by Lou Cottingham and not by Samuel J. Vinnedge or his wife Fannie C. Vinnedge; that Samuel J. at no time and in no manner be
The court rendered judgment in appellee’s favor, finding the material facts set up in each of the paragraphs of complaint to be true and adjudged the sales of appellee’s part of said lot for taxes and street improvements unlawful; that such sales be set aside as null and void; that said officers be enjoined from making the respective deeds necessary to complete such sales; that appellee’s title to said lot be quieted as against such sales and as against all claims, rights or interests based thereon or on the liens for taxes and improve'ments on which such sales were made; that said treasurer of said city of Tipton, and the treasurer of said county of Tipton and their successors in office “are each hereby further enjoined and restrained from selling or offering for sale, and said defendants from claiming their right to sell, plaintiff’s said interest in said lot, to wit: — twenty-five feet off of the whole east end of said lot 1, in block 14, in the original plat of said city of Tipton, Tipton County, Indiana, heretofore mentioned and described for and on account of said street assessment or any installment or part thereof until the remaining two-thirds part of said lot owned by said defendants Evaline Y. Darby and the Assets Realization Company has been offered and exposed for sale and fails to bring enough to pay off and satisfy said assessment or any installment or part thereof sought to be made by such sale.”
A motion to modify the judgment made by appellants Darby and said Assets Realization Company was overruled. This motion is lengthy, and as it is conceded that the same
It is earnestly insisted by appellants that the wife’s interest in her husband’s land, sold at judicial sale, is the same as where the husband has died, and that in such case she takes such one-third interest free from the demands of creditors; that a creditor is one who holds a personal debt, demand or obligation against another, and that the assessment for this street improvement was in no sense a debt, demand or obligation against appellee’s husband, Samuel J. Yinnedge, but that it was merely a lien against the entire lot on which the assessment was made.
The policy of the law to favor and even to amplify the rights of the wife or widow in her husband’s real estate as evidenced by the decisions cited, should have an important if not controlling influence upon the determination of this question, and we are not prepared to say that this influence alone might not be sufficient to cause us to affirm the judgment of the lower court in this case. We must admit, however, that none of the cases relied on by appellee, and cited herein quite reach the exact question here presented.
We find no reversible error in tbe record and tbe judgment is affirmed.
Note. — Reported, in 100 N. E. 862. See, also, under (1) 14 Cyc. 63; (2) 14 Cyc. 68; (4) 14 Cyc. 66; (5) 28 Cyc. 1102; 37 Cyc. 711; (7) 20 Cyc. 680. As to estoppel against married women, see note to Trimble r. State (Ind.), 57 Am. St. 169.