Godfrey v. Godfrey, 17 Ind. 6

Godfrey v. Godfrey

17 Ind. 6 | Ind. | 1861

Worden, J.

This was a petition by the appellant against the appellees, for the partition of a certain tract of land. Miller demurred to the petition, and the demurrer having been sustained, the petitioner appeals.

The petition sets out, in substance, that by a treaty made October 23,182G, between the United Stales and the Miami tribe of Indians, one section of land was granted to Louisan Godfrey, a plat of which was filed and made a part of the *7petition. From tbe plat filed, it appears that the land lies in township twenty-seven north, of range three east, but the particular section, or other definite description, does not appear. It is alleged that Louison Godfrey, in his lifetime, sold and conveyed three hundred and forty acres of the tract, leaving in himself three hundred acres in the north part of the section, of which he died seized. It is alleged that Louison Godfrey left children and grand children, to whom the three hundred acres descended, one of whom was the petitioner, Shin-go-qua Godfrey, and the others are made defendants. It is also alleged that John TFT Miller and Edward A. Godfrey, (who are not heirs of Louison]) each claim and pretend to have a title to the three hundred acres, or some part thereof, but the nature of their claims and title, and the amount of their respective interest, the petitioner did not know, that the petitioner does not know whether Miller and Edward A. Godfrey have any interest in the lands, or not, but as she is informed that each of them pretend to have an interest and ownership therein, they are made defendants. That the petitioner is entitled to one-filth of the land, by inheritance from her grand father, <&c. Partition is prayed.

In support of the decision below, in sustaining Miller's demurrer, four objections are made to the petition, in the brief of his counsel:

1. “It does not show that the lands lie in Miami county; and therefore it does not appear that the Court had jurisdiction.”

In the case of Brownfield v. Weicht, 9 Ind. 394, it was held that the Circuit Court, being one of general and unlimited jurisdiction, its authority to proceed in the trial of a cause need not affirmatively appear- in the complaint. The objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings. That case is decisive of the point here.

2. “The land is not sufficiently described.”

There is, to be sure, no definite description of the land contained in the complaint, but the land sought to be partitioned is the north part of the section granted, by the treaty mentioned, to Louison Godfrey; and cerium est quod certiom reddipotest. *8The treaty is a public law, and may be noticed by the Courts; hence, if that sufficiently describes the land, perhaps further particularity in the description would be unnecessary. We not> Il0wever5 decide that there is a sufficient description of the land, either directly, or by reference to the treaty. But we think the uncertainty in description can not be taken advantage of on demurrer. Hiere are facts stated sufficient to constitute a cause of action. Those facts are, that three hundred acres in the north part of the section granted to Godfrey by the treaty, descended to his heirs, of whom the petitioner is one, and entitled to partition thereof. The uncertainty in the description can not be regarded in the same light as the omission of a fact necessary to be stated, in order to constitute a cause of action. The uncertainty in the description might have been obviated by a motion to require the pleading to be made definite and certain, by amendment. Code, § 90.

3. “The complaint only shows who are the owners of four-fifths of the land, and does not aver that the petitioner does not know who is the owner of the other fifth.”

Hiere is a little confusion in the statement of the respective shares of the children and grand children of the reservee; and perhaps the shares, as set out, do not exhaust the whole of the land. But the petition states that the land descended to those children and grand children, and they are all made parties. We can not pereeive how Miller, who alone demurred, is interested as to the question of a proper division between the descendants of the reservee. Those descendants were made parties, and whether the petition set out the supposed rights of each properly, or not, made no difference to Miller ; as a judgment in his favor would bind them, and a judgment against him, would render it immaterial to him how the land was partitioned among them.

4. “The petitioner can not have partition of the premises, because Miller is in possession of the whole, claiming an adverse title.”

It is claimed that the petitioner can not have partition, without having possession. The contrary ivas held, in the case of Foust v. Moorman, 2 Ind. 17. The present statute *9on the subject of partition, provides that “all persons holding lands,” &c., may have partition. We do not construe the word “holding,” thus used, as requiring actual occupancy, but as equivalent to owning, or having title to lands, &c.

It does not appear from the complaint that Miller is in possession, but simply that he claims title. But supposing he were in possession, claiming adversely, the objection, we think, would not be well taken. The statute provides, that “Any person interested in such estate may appear and plead, any matter tending to show that the petitioner ought not to have partition, as prayed for; and the further pleadings shall be conducted as in actions at common law, until an issue in law, or in fact, shall be joined, which shall be determined as in other cases. If any person, not named in the petition, shall appear and plead as a defendant, or allege any title to any part of the premises, the petitioner may reply that such person has no estate in the premises, and may pray judgment if he shall be admitted to. object to the petition; and the petitioner may likewise reply, in answer to such plea, any other matter, in like manner as if he had not disputed such person’s right to appear.” 2 R S. 1852, p. 330, §§ 5, 7.

These provisions clearly contemplate that any person, not made a party, may appear and set up title in himself to the premises sought to be partitioned. (1) Where such title is set up, and found against such person, no reason is perceived why partition should not be made among- those to whom the land belongs, although such person may have been in possession. Formerly, when proceedings for partition were regarded as chancery proceedings, where the legal title was disputed, the course was to send the plaintiff to law to have that title established, before proceeding in chancery for partition. Foust v. Moorman, svpra. The distinction between actions at law, and suits in equity, is abolished by the code. Actions for partition are governed by the code. 2 R S. 1852, p. 174. Courts now having jurisdiction in partition, have the power of settling questions of title. Wolcott v. Wigton, 7 Ind. 44. There seems to be no good reason why ¡dl questions of title and possession, may not, under the statute, be settled in the suit for partition. Perhaps the *10parties would be entitled to a new trial, as provided for in other cases involving titles, without cause shown; but this point need not be decided, as it does not arise.

J. M. Wilson and W. Z. Shiart, for the appellant. Ef. O. Boss and B. P. Effinger, for the appellees.

(1) Semble, that one claiming- the separate and entire ownership of lands, can not be made a defendant to a proceeding- for the partition of the lands, instituted by others claiming as tenants in common. Baker v. Riley et al., 16 Ind. 479.

Miller, in this case, did not come and ask leave to make defense, but was made defendant to the petition originally, which was just as well. It is alleged that he claimed title, and the proceedings would bar him, unless he came in and set up his claim if be had any. Instead of demurring to the complaint, we think he should have set up his claim to the land, if he had any such claim.

Per Ouricom. — The judgment is reversed, with costs; Cause remanded, &c.