29 Ind. 618 | Ind. | 1868
This was a suit to i’ecover for the use and occupation of lands, and for the value of a building, and timber trees removed therefrom. The answer was in seven paragraphs. 1. General denial. 2. As to the use and occupation ; that the premises were used and occupied by one Mary Grossman, mother of the plaintiff's, who was a tenant in common with the plaintiffs, owning one-third of thé premises for life; that said Mary leased the premises to the defendant, and that he had fully paid the rents to her. 3. As a defense to the whole complaint, that said Mary Gross-man was a tenant in common, owning one-third • of the premises for life, using and occupying the premises during the period mentioned in the complaint, and that the defendant had fully paid her for rents, the house and the timber. 4. Payment to the plaintiffs. 5. As to use and occupation, that during the time, &c., Mary Grossman was the mother of the plaintiffs, and the wife of the defendant, and a tenant in common with them, and that said Mary occupied said lands. 6. That in 1849, the defendant married the mother of the plaintiff's, who was relying upon.the land for the support of her infant children, the plaintiffs, one three, the other five years old, the rents of which were not sufficient for that purpose; that the defendant took the plaintiff's to his house, and furnished them a home, and for eight years cultivated the land, which was worth §15 per annum, of which oné-third belonged to plaintiff's’ mother, as a tenant in common with them, and one-ninth to each of the plaintiff's;' that the defendant, for boarding, clothing and educating
The seventh paragraph of the answer, so far as it claimed to set off taxes paid on the lands during the defendant’s occupancy thereof, was clearly good. The 199th section of the act concerning the assessment and collection of taxes seems to settle this question conclusively. 1 Gr. & IT. 113. The demurrer to that paragraph was therefore erroneously sustained. The claim for improvements in that pleading, as they appear from its averments to have been voluntarily made, could not be allowed.
The sixth paragraph of the answer presents a question of some difficulty. Ordinarily, an infant is liable for necessaries, and it is also a general rule that a step father taking the infant children of his wife by a prior marriage to reside with him as members of his family, cannot hold them liable for necessaries. He is not legally bound to support them, and he may lawfully decline to receive them into his family, or he may receive them in pursuance of an express contract with their guardian, to be compensated for their maintenance, and in that case, he could as well recover as any other person. -And should an infant contract with his step father for necessaries of the character named in the paragraph, and then avoid the contract upon the ground of infancy, no reason is perceived why the law would not imply a promise by him to pay the value of the necessaries. When the children are taken with the mothei’, the law seems to presume that it was voluntarily done, without any intention to claim compensation, and upon that ground rests
The fifth paragraph was, at best, but an argumentative denial that the defendant had used and occupied the lands, by alleging that the defendant’s wife had done it as a tenant in common of the plaintiffs. This, as the general denial was pleaded, might have been stricken out on motion, and the action of the court, in sustaining the demurrer to it, could do no harm, the same facts being admissible in evidence under the general denial.
■ The second paragraph, as a defense to the claim for use and occupation, alleges a renting from a tenant in common of the plaintiffs, in possession of the whole premises, and a payment of the rent to her, and the third, as a defense to the whole complaint, alleges a payment to the tenant in common for the use and occupation, and for the waste alleged.
An issue was made on the fourth paragraph of the answer by a reply of general denial. The defendant offered to prove payment to Mary, his own wife, for the use of the plaintiffs’ land, it appearing that the father of the plaintiffs died intestate, seized in fee of the lands, leaving Mary, his widow, surviving. She was entitled to dower, which had never been assigned. She was not a tenant in common, and this evidence was properly excluded.
The judgment is reversed, with costs, and the cause remanded, with directions to overrule the demurrers to the second, third, fourth and seventh paragraphs of the answer. ■