78 Ind. App. 98 | Ind. Ct. App. | 1922
— Appellee recovered a judgment for the possession of certain real estate. Appellant’s motion for a new trial was overruled, and he appeals.
In 1916, and prior thereto, appellant was the owner of the real estate in controversy. At the instance and request of appellant, appellee purchased and had assigned to him a judgment against appellant in favor of one Hubbard, and which was a lien upon said real estate. An execution having been issued to the sheriff upon this judgment, he levied upon and sold the real estate to appellee. There being no redemption from this sale, the sheriff issued a deed to appellee. In February, 1918, Sarah Gowan, then the wife of appellant, filed her complaint against both appellant and appellee for partition. By agreement of the parties a receiver was appointed to take charge of the real estate.
Appellant makes no claim that he has any interest in the. property in question, or that he is entitled to the possession. His contentions are that the commissioner appointed by the court in the action for partition holds the title to the property and is the only person authorized to maintain an action in ejectment. None of the authorities cited by appellant support his contention. This is not a case where title is vested in a trustee by a will or other instrument. Where the court upon the trial in partition proceedings finds that the real estate cannot be divided without damage to the owners, the whole or any part of the real estate may be sold as the court in its discretion may direct. (§1246 Burns 1914, §1189 R. S. 1881.) Such sale (not conveyance) shall
While the evidence shows that Sarah Gowan was at one time the wife of appellant, it is sufficient to justify the inference that when she executed the deed to appellee she was unmarried.' We hold that appellee upon the execution of this deed became the owner of the fee of the whole of the real estate in question, and that he was the proper person to prosecute an action to quiet title.
What we have heretofore said disposes of all questions presented by appellant.
No reversible error being pointed out, the judgment is affirmed.