151 Ind. 1 | Ind. | 1898
Albert Galvin died intestate at Marion county, Indiana, on July 7, 1888, and the appellee, Elizabeth Britton, and George W. Galvin, in April, 1893, as administrators of said intestate, instituted, by petition, these proceedings to secure an order of the circuit court to sell certain real property in order to pay the debts and liabilities of the estate.' No steps seem to have been taken in respect to this original petition, but in October, 1894, Elizabeth Britton, who at that time had become the sole administratrix of the estate, by leave of court filed an amended petition as a substitute for the original, which appeared to have been lost from the files of the court. Subsequently, she filed another amended petition on which the issues were joined and a trial had in this cause. The latter petition averred that the decedent, Albert Galvin, at the time of his death was the owner in fee simple of three certain described parcels of real estate, situated in the city of Indianapolis, in Marion county, Indiana. The first described parcel may be denominated and known as the Little’s hotel property; the second as the Noble street property; the third was described as Lot 18 in McKernan & Pierce’s subdivision of outlot 128 in the city of Indianapolis. This amended petition, after setting forth and describing these several parcels of land, and alleging that the same embraced all of the realty of which the decedent died seized, then proceeds to charge that the appellant (who is the wife of George W. Galvin) claimed that she was the
Appellant filed a separate answer to the petition to sell, to which the appellee, as administratrix, replied, but as no question is raised as to the sufficiency of these pleadings, we need not state the facts therein alleged.
Appellant also unsuccessfully demurred to the cross-complaint of Mrs. Britton, and thereafter she filed an answer thereto in three paragraphs; the first the general denial; the second averred that she was the owner of the undivided one-fourth of the Little’s hotel property, describing it, which descended to her husband, George W. Galvin, at the death of his father. It was averred that she became the owner of said interest in said property on the 9th day of July, 1888, by a deed from her said husband, and had been in the possession of the said property since that time, and that the indemnity mortgage mentioned in the cross-complaint was executed by her without any consideration whatever. The third paragraph alleged that the undivided one-fourth interest in the said hotel property had been conveyed to her by her husband for a valuable consideration on the said 9th day of July, 1888, and it was further averred that at the time she executed the indemnity mortgage set out in the cross-complaint she was a married woman, and that the same was executed to secure the debt of the decedent, and that no consideration moved to her for its execution; consequently, she alleged that the said instrument was void and of no effect. Mrs. Britton filed a reply to this answer, wherein it was substantially
The issues were joined between the parties upon these several pleadings, and after hearing the evidence, the court ordered that the undivided one-fourth interest in the Little’s hotel property be sold for the payment of the debts and liabilities existing against the estate, and appointed a commissioner to make such sale, and directed upon what conditions and
Appellant filed a motion for a new trial, wherein she assigned eight reasons in support thereof: (1) that the court erred in denying her a change of venue from the county; (2) in compelling her to go to trial without having first disposed of her cross-complaint for partition. The third reason assigned is equivalent to the second. (4) In denying her right to a trial by jury; (5) insufficiency of the evidence; (6) that the finding is contrary to law; (7) that the finding and order is contrary to law; (8) refusal of the court to submit the trial of her partition proceedings to a jury. The motion was overruled, and this action of the court, among others, is assigned as error.
All of the causes embraced in the motion for a new trial,- except the fifth, sixth and seventh, are also independently specified in the assignment of errors. The.other errors assigned are, (1) that the amended petition of the administratrix does not state facts sufficient to entitle her to the relief prayed; (2) that the cross-complaint of Elizabeth Britton does not state facts sufficient to constitute a cause of action; (3) that the court erred in overruling the motion to strike out parts of the petition; (7) that the court erred in overruling the demurrer to the amended cross-complaint of Elizabeth Britton.
The first assignment of error does not assail the petition for insufficiency of facts to constitute a cause of action, but it is alleged, as we have seen, that the petition does not state sufficient facts to entitle her to the relief prayed. It is evident that this assignment does not respond to the requirements of the exception provided by section 346, Burns’ E. S. 1894 (343, E. S. 1881), which authorizes a party to challenge a complaint on appeal for the first time on the ground that
Appellant complains of the decisions of the court in overruling each of the following motions or applications: (1) To strike out certain parts of the petition; (2) to postpone the trial of the cause until after the hearing of her petition for partition; (3) overruling her application for a trial by jury; (4) denying her application for a change of venue from the county. It is sufficient, however, to say that none of these motions or applications, nor the grounds on which they are based, have been properly brought into the record by a bill of exceptions,, or otherwise, consequently, no question in respect to these several rulings of the court is presented for our consideration. This rule is so Avell settled, and universally recognized by the legal profession, that the citation of authorities in support thereof is useless. It may be further said, however, that the application for the change of venue is shown to have been denied for the reason that it was not made within the time fixed by the rules of the lower court. .
There is an insistence on the part of the appellant that the lower court was not authorized to consider or exercise jurisdiction over the question presented by the cross-complaint of appellee, for the reason that
It is contended by appellant that it is shown by the evidence that at the time she executed the indemnity mortgage in controversy she was a married woman, the wife of George W. Galvin, and the owner of the mortgaged premises, the undivided one-fourth interest in the hotel property, and that the mortgage debt was not her own, but was a claim or debt existing against the estate of the decedent, therefore, her act in pledging this property by the mortgage for the payment of said debt was void by reason of the statute which prohibits a married woman from becoming a surety for another.
Counsel for appellee, however, insist that the evidence fully establishes that appellant is estopped from controverting the validity of this mortgage. It appears from the evidence that Albert Galvin, the decedent, died late on Saturday night of July Y, 1888,
In the case last cited, we said: “The disability as to suretyship, imposed by the statute upon a married woman, must be considered in connection with another provision of the same act, to the effect that she shall be bound by an estoppel i» pais, and no construction ought to be given to this exception by the statute of her ability to contract, as will place in her hands a sword to defend her own fraud and imposition on others, instead of a shield for her protection, as the law intended.”
There is evidence which the trial court seems to have deemed credible and reliable which sustains the estoppel plead by'the reply to appellant’s answer to the cross-complaint, and we would not, therefore, be justified in disturbing the judgment upon this issue.
But it is insisted by counsel for appellee that upon another view of the case appellant is debarred from assailing the validity of the mortgage, for the reason that it was in part at least for her benefit. Counsel say that the evidence shows that the $1,500.00 note was the debt of the decedent, and therefore, when he died, under the law all of his property was charged