43 Ind. App. 688 | Ind. Ct. App. | 1909
This was a suit by appellees John and Charles Garretson against appellant for partition. The complaint is in two paragraphs — the first, in the usual form, and averring that the estate cannot be divided without damage to the owners, the second, for a partition and accounting on the part of appellant for the rents and profits. To this complaint appellant averred by way of answer, that while said appellees had the legal title to ten fifty-fourths of the land, they have no beneficial interest in said real estate, for the reason that the ancestor, Gideon Garretson, prior to, and at his death on March 1, 1880, was the owner of said real estate and other lands in said county; that he died intestate on March 1, leaving surviving as his heirs at law his widow and his children, appellant and appellees herein, and a daughter, Margaret; that said Gideon Garretson prior to his death had executed certain bonds and mortgages, and pledged all of his real estate to the payment of the same; that at the death of said Gideon Garretson his entire estate was not of sufficient value, if it had all been converted into money, to pay the debts aforesaid without subjecting to sale the interest of the widow. There are other averments in the answer which is quite voluminous, but for the purpose of this case it is unnecessary more fully to set them out than we have done.
The questions presented are upon exceptions to the conclusions of law stated upon a special finding of facts made by the court. The finding of facts shows that Gideon Garretson in his lifetime was the owner of the eighty acres of
The court then proceeds to find the respective interest of
This finding is unquestioned and undisputed.
that they took this interest subject only to its proportion of the mortgage.
The court does not find whence she derived her title, or that
The conclusions of law and decree thereon specified that in the event appellant failed to pay the sums before described to appellees within sixty days, then the lands should be sold by a commission and the proceeds divided as follows: (1) To the payment of the costs of this proceeding; (2) to the satisfaction of the mortgage to the Citizens State Bank; (3) to the payment to James Garretson of the sum of $221; (4) the remainder to be divided, giving appellees each five fifty-fourths and the remaining forty-four fifty-fourths to James Garretson. As we have shown, the land is chargeable with $1,197 due to appellant as excess of expenditures over receipts, and therefore the third specification is erroneous, as to the amount that should be paid appellant out of the proceeds, the amount to bo paid James being $1,197 instead of $221. The decree of the court should therefore, in substance, be that the land should be sold by a commissioner, and the proceeds remaining, after the payment of costs and expenses, the amount of the mortgage to the Citizens State Bank and
The decree is reversed, with instructions to restate the conclusions of law and enter a decree in accordance with this opinion.