23 Ind. 440 | Ind. | 1864
Alfaretta Cox, a minor, by her guardian, filed in the court below her complaint against Dillman for partition of real estate in Cass county. It is alleged that John Cox, the ancestor, died intestate in April, 1855, seized of the land in question, leaving surviving him Joanna, his widow, and five children, George, Daniel, Andrew,
The true notion of an advancement is a giving by anticipation the whole or a part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement. Osgood v. The Heirs of Ebenezer Breed, 17 Mass. 355. It, is a question purely of intention. Lawson’s Appeal, 23 Penn. St. Rep. 85; Sherwoood v. Smith, 23 Conn. 516. The statute now in force on this subject, (1 G. & H., p. 293, sec. 12,) and that of 1843, (R. S. 1843, p. 439, sec. 134; p. 555, sec. 372,) are substantially the same. In the case of Shaw v. Kent, 11 Ind. 80, it was held by this court that, to constitute an advancement to a child “ by settlement or portion of real or personal estate,” under the act of 1843, such a settlement or portion must have been so intended.
In the absence of any statutory provision, the legal presumption is, that the conveyance of real and the transfer of personal property to a child by a parent is prima facie an advancement, and not a gift. But the intention of the parent can be shown by parol evidence.
Tested by these rules, the ease at bar is not one of advancement, but of gift, and the Circuit Court erred in taking into consideration the sums given by John Cox, the ancestor, to his four children by the first marriage.
The appellant filed exceptions to the report of the commissioners who made partition of the land in question as
The plaintiff replied to the first and second exceptions, and demurred to the third. The demurrer was sustained; but no question is made in this court as to the sufficiency of this latter exception.
The appellant demanded a jury to try the issues of fact made by the exceptions to the commissioners’ report, and the reply thereto. But the court refused to call a jury, and the defendant excepted and filed his bill of exceptions. The court, after hearing the evidence, overruled the exceptions to the report, and the defendant moved the court
The testimony shows that the commissioners in making partition gave the plaintiff one-fourth of the land in quantity, without regard to the value thereof; hut it is shown that the land thus set off to the plaintiff was one-fourth in value as well as in quantity, and as substantial justice was done in this respect for this error alone, this court would not reverse the case. But, in making partition, regard should be had to the value and not the quantity of the land partitioned. Was the defendant entitled to a trial by jury on the issues of fact, on his exceptions to the commissioners’ report ?
The statute “ Concerning Partition of Lands” provides, that “ if upon trial of any issue, or upon default, or by confession, or by consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment, that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate, and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.” 2 G. & H. 363, sec. 9.
This is analogous to the proceeding at common law, in which, if the plaintiff prevail, there are two judgments; the first, that partition be made between the parties, etc., .and that the sheriff cause the land to be divided into as many parts as the case may require, and to be delivered and assigned to each party, (naming him,) his respective part to be holden to him and his heirs in severalty. Upon this judgment, the writ ds facienda partitions issues to the sheriff, and upon his return, showing the manner of his executing it agreeably to the first judgment, the second and final judgment is rendered, “that the aforesaid partition be holden firm and effectual forever.” (2 Sell. Pr. 315, 319.)
But while there are two judgments in partition cases, there is but one trial, and that is had before the respective rights of the parties are determined by the interlocutory judgment of partition. It is not every question of fact which may arise in the progress of legal proceedings that entitles the parties to a jury. The constitutional provision is, that “ in all civil cases the right of trial by jury shall remain inviolate.” This only secures to parties the “ right of trial” by jury. There are many motions addressed to the court in the progress of a cause involving questions of fact; it would be an anomaly in legal proceedings if in all such motions the parties could call a jury.
Exceptions to the report of commissioners in partition cases are addressed to the court, and are determinable without the intervention of a jury.
The judgment of the Circuit Court is in all things reversed ; the finding of the Circuit Court, and all the subsequent proceedings are set aside at the cost of the plaintiff below, and this cause is remanded to said court with directions to grant the appellant a new trial, and for further proceedings in accordance with this opinion. Costs here.