17 Ind. 6 | Ind. | 1861
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
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.
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
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
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.