125 Ind. 185 | Ind. | 1890
— The land in controversy was owned, at one time, by Thomas E. Scott, and he was at the time the owner
Our decisions declare that where the provisions of a will are the same as those of the law, the devisee will be deemed to take by the law, and not under the provisions of the will. Stilwell v. Knapper, 69 Ind. 558 ; Davidson v. Koehler, 76 Ind. 398; Davidson v. Bates, 111 Ind. 391. In this instance the provisions of the will are unusually clear and explicit, for it is expressly declared that the widow shall take such an estate as the statute gives her.
It is settled by our decisions that where the title is not in
Title may be put in issue in partition proceedings, and if it is in issue the decree is conclusive. McMahan v. Newcomer, 82 Ind. 565; Ferris v. Reed, 87 Ind. 123; Thorp v. Hanes, 107 Ind. 324.
The title was not put in issue in the partition proceeding, nor adjudicated, and the right of the testator’s widow was, therefore, not affected, except as to the parcel which she was entitled to hold in severalty, and as to that no further than to vest it in her in severalty under the law, and exclude her from the other lands. In other words, the decree in partition simply determined what she should take in severalty, not by what title she should hold it. Whatever the tenure of her holding at the time the proceedings were begun, by that tenure she continued to hold so far as concerns the decree of partition.
A purchaser at a sale made upon a decree of foreclosure rendered against a woman who acquires property from her first husband under the statute, and who marries a second time, does not acquire by mere force of the decree and sale a fee simple title, nor, indeed, any title at all. McCullough v. Davis, 108 Ind. 292. It is evident, therefore, that if the appellant acquired title it must be for the reason that some decree or judgment other than the decrees in the partition proceedings and foreclosure suit vested it in Clarinda Davis.
If the appellant acquired title it must be for the reason that the decree in the suit to quiet title divested the title of the appellee and the other defendants to that suit, and quieted it in Clarinda Davis. If the decree in that suit did quiet title in her, it freed the property from all claims of whatso
A complaint to quiet title challenges the defendants to present their claims, and directly gives them an opportunity to assert their interest or title, and if they fail to do so they are concluded. This doctrine is as old as this court — indeed, it is much older. Fischli v. Fischli, 1 Blackf. 360. It has been approved and enforced time and time again.
In the suit to quiet title Clarinda Davis asserted that she was the owner of the land in fee simple, and it was this assertion of ownership that the defendants were challenged to contest. If she was, in fact, the sole owner in fee, the de-' fendants could not possibly have any title whatever, for the existence of a fee simple is always and absolutely exclusive. Dumont v. Dufore, 27 Ind. 263; Rogers v. Beach, 115 Ind. 413 (415); Carver v. Carver, 97 Ind. 497 (504).
The decree declares that the widow of Thomas E. Scott took and held the land in fee simple, and recites the conveyances to Clarinda Davis. This of itself is an adjudication that the grantor of Clarinda Davis was the owner in fee of the land, and concludes all who were defendants to that suit. But there is much more in the decree, for it is found and declared by the court that all of the allegations of the complaint are true, and this is, of course, a finding that the statement of the complaint that the plaintiff was the owner in fee simple is true. If she was the sole owner in fee the conti’oversy is at an end. There is a further decretal order,
' It matters not how many or how great the errors of the court in the course of the suit, the decree is not void, and if not void no collateral attack can be availing. We can look no further than the question of jurisdiction, and that there was jurisdiction is not controverted. Lantz v. Maffett, 102 Ind. 23.
Judgment reversed.