166 Ind. 415 | Ind. | 1906
—Appellants, as the heirs at law of Charles O. Fry, deceased, brought this suit for partition, alleging that they were the owners as tenants in common of an undivided one-third and appellees the owners of an undivided two-thirds part in value of the real estate in controversy. Appellees answered by general denial, and appellee Martha Hare filed a cross-complaint in three paragraphs, alleging ownership in fee of the entire property and ashing that her title be quieted. The cause was tried by the court, special findings made, conclusions of law stated thereon in favor of appellees, and decree rendered accordingly.
Appellants have assigned as error the overruling of demurrers to each paragraph of cross-complaint, and error in the statement of each conclusion of law.
The facts specially found by the court are in substance as follows: Appellants William, Albert, Isaac, Abraham L. and Oliver Ery and Melissa Shaffer are the children of Charles O. Ery by his first marriage, and William Wolf is the only child of Erema Wolf, deceased, who was also a daughter by said marriage. In 1864, after the death of his wife, Charles O. Ery married Elizabeth Stern, and on August 6, 1868, died intestate, leaving surviving him, as his only heirs at law, appellants and his widow Elizabeth, who was a second and childless wife. On December 24, 1896, said Elizabeth Ery died. During his said second marriage Charles O. Ery became the owner in fee simple of the real estate involved, situated in Hamilton county, and afterwards, in the year 1867, sold the same to Zadoc W. Passwater, and placed him in possession thereof under and by virtue of said sale. Under and by virtue of said purchase, Passwater, during the lifetime of Fry, fenced, cleared, drained and tiled said real estate, and from the time of his purchase had and held, under claim of ownership, the exclusive, uninterrupted, open, and notorious possession of the same until his death, which occurred in the year 1871, and long prior to his death he paid the purchase money in full. Said Passwater died intestate, and left as his only heirs at law his widow and children, who continued in the exclusive, uninterrupted, open and notorious possession of said real estate under claim of ownership, and made lasting and valuable improvements thereon. In the year 1873 the heirs at law of said Passwater caused
The court stated conclusions of law upon this finding of facts as follows: (1) That appellants take nothing by their complaint and that appellees recover all costs. (2) That appellee Martha F. Hare is the owner in fee simple of the real estate described, and entitled to have her title thereto, quieted as against appellants and to recover her costs.
Appellants severally excepted to each conclusion of law, and in support of their exception contend that upon the death of Charles O. Fry one-third of the real estate in con
Binding no error, the judgment is affirmed.