43 Ind. 561 | Ind. | 1873
This was a petition for the partition of certain real estate, filed by the appellants, Doctor B. Davis and Matilda Davis, his wife, against the appellees, Ann Davis and Harriet, Oliver, John, and Emily Eads. Ann Davis, now again married, was the widow, and the other parties, except Doctor B. Davis, were the children of Oscar F. Eads, deceased, who was at his decease the owner in fee of the lands. The lands sought to be parted were, 1st. The south half of the north-east quarter of section, sixteen,
The second paragraph of the answer of Ann Davis was stricken out on motion of the plaintiff, on the ground that the matter set up was admissible under the general denial. The plaintiffs demurred to the third paragraph, on the ground that the same did not state facts sufficient to constitute a cause of action or to constitute a defence to. the-action. This demurrer was overruled, and the plaintiffs excepted. The issues were then completed by the filing of a general denial of the third paragraph of the answer. Jo this stage of the case, it had been in the common pleas, but here, because it was supposed that the title to real estate was involved, and that that court would no longer have jurisdiction of the case, it was transferred to the circuit court. In the circuit court, Ann Davis filed a fourth paragraph of answer, alleging that her husband owned at his decease, in all, two hundred acres of land, including that in question; that she was duly appointed administrator of his estate, and before the commencement of this action, had, by order of the proper court, sold it all for the payment of debts, except the part mentioned in the petition in this case, and applied the proceeds to the payment of the debts of the deceased; and that “ she did not disclaim her interest to said purchase ; wherefore she is estopped from claiming any interest in the real estate so sold as aforesaid; and asks that her interest, one-third of said two hundred acres of real estate of which said Oscar F. Eads died seized, be set off to her out
The issues were tried by the court, and there was a finding that Ann Davis was the equitable owner of the first described tract in the petition under the third paragraph of her answer, in her own right; that she was the owner of one-third of the residue, and her said children are the owners of the other two-thirds. Commissioners were appointed to make partition accordingly. The commissioners reported that the land ordered to be partitioned could not be divided, etc., and the court ordered it to be sold, etc.
A motion for a new trial was made at the proper time and overruled, and an exception was duly taken. The evidence is in the record. Two' errors are properly assigned in this court: ist. The overruling of the demurrer to the third paragraph of the answer of Ann Davis; and, 2d. Refusing to grant a new trial on the motion of the plaintiffs. The appellee Ann Davis filed a confession of the errors, January 9th, 1873 > but afterward, December 19th, 1873, she withdrew the offer.
The first objection urged against the third paragraph of the answer is, that it does not particularly describe the real estate which it is claimed was conveyed by Ann Davis and her husband, Eads, to Sparks, as the consideration for which he agreed to convey and did convey the land to Ead9, which is now claimed by Ann. We think it is substantially alleged that Ann and her. husband, Eads, conveyed certain real estate, belonging to her to Sparks, in consideration of
The other objection made to the third paragraph of the answer of Ann Davis is, that the facts alleged do not show that she is entitled to claim the land; that there is no resulting trust or trust of any kind shown to exist in her favor. We think otherwise. It appears to us that if it is true that her land was exchanged for this, and she was promised that the deed should be made to her, and it was taken in the name of her husband without her consent, she has an equity to have this contract or trust enforced against the heirs of her husband. Dayton v. Fisher, 34 Ind. 356; Watkins v. Jones, 28 Ind. 12; Glidewell v. Spaugh, 26 Ind. 319; Resor v. Resor, 9 Ind. 347. Among the reasons urged for a new trial, it was contended that the finding of the court was not sustained by sufficient evidence. Wethinkthis objection to the judgment must be sustained. Ann Davis, in the third paragraph of her answer, upon which judgment in her favor was rendered for the title to the eighty-acre tract of land, alleges that the land was conveyed to Eads, her husband, by Sparks. The general denial put this in issue. A deed is in the record from Sparks, but, whether by mistake or for some other reason we do not know, it contains no words of conveyance and fails to name any grantee. It commences as follows: “Francis Sparks and wife, Matilda Sparks, of Madison county, and State of Indiana, for the sum of six thousand dollars, the following real estate,” etc. This deed was given in evidence by the plaintiffs to show title in Eads, but we do not see that this can make any difference. It fails to show title in Eads for any purpose.
The judgment is reversed, with costs against Ann Davis; and the cause is remanded, with instructions to grant a new trial.