45 Ind. App. 513 | Ind. Ct. App. | 1908
Lead Opinion
Appellant brought this suit by a complaint in three paragraphs. The first was to quiet title to a one-third interest he claimed in eighty acres of land in Marshall county, Indiana. The second was for the partition of said real estate, for the appointment of a commissioner to sell said land, and for an accounting of rents by defendant. The third paragraph alleged, in addition to the averments of the second paragraph, that on September 21, 1896, Emeline Hampton, plaintiff’s wife, departed this life, intestate, leaving surviving her this appellant, her husband; that on March 1, 1899, Henry B. Hall was appointed administrator of her estate, and that on June 3, 1899, as such administrator, he filed his petition to sell decedent’s real estate to pay her debts, and on August 7,1899, he sold said eighty acres of real estate to William M. Patterson; that plaintiff’s interest in said real estate was not ordered or directed by the court to be sold, and was not sold by virtue of said sale; that plaintiff was the owner in fee of the undivided one-third of said real estate; that defendant has been in possession of said real estate for six years last past, and has had the use, rents and profits thereof, which are of the value of $1,200; that plaintiff’s share thereof would amount to $400. Plaintiff asks that he be declared the owner of one-third of said real estate, and that it be ordered sold by the commissioner. He
To this complaint defendant filed his answer in four paragraphs: (1) General denial. (2) Alleging that Emeline Hampton departed this life on September 21,1896, the owner of the real estate described in plaintiff’s complaint, together with other lands situated in said Marshall county, Indiana, and leaving surviving her as her heirs at law, Stephen K. Hampton, appellant herein, William A., Harrison L., and Maud E. Hampton; that on August 23, 1895, said decedent, together with her husband, executed to William M. Patterson' a mortgage upon said real estate described in plaintiff’s complaint, to secure a note of even date therewith for $1,775, executed by said decedent to said Patterson; that said mortgage was duly recorded on September 10, 1895, in mortgage record 25, page 87, of the mortgage records of Marshall county, Indiana; that on June 15, 1896, said decedent and her husband executed a mortgage to the People’s Loan and Savings Association of Warsaw, Indiana, on which there was due and unpaid at the time of decedent’s death the sum of $350, which mortgage was duly recorded in the mortgage records of Marshall county, Indiana; that the whole of the personal estate of said decedent did not exceed in value $87.37; that on March 2, 1899, said Stephen 3L Hampton filed with the clerk of Marshall circuit court a relinquishment of his right, as the widower of said decedent, to administer upon her estate, and requested that Henry B. Hall be appointed as such administrator, and thereupon on said day said Hall was duly appointed and qualified as such administrator, and caused the personal estate to be inventoried and appraised, which amounted to $87.37; that on May 24, 1899, William Patterson filed his note and mortgage as a claim against said estate, the amount claimed to be due thereon at that time being $1,880; that there was also due on the People’s Loan and Saving Association’s loan, $375, and $21 of unpaid taxes on the mortgaged real estate; that the
The third paragraph of answer alleged substantially the same facts as are alleged in the second paragraph, and also set out the receipt of Stephen K. Hampton to Henry B. Hall, administrator, which is as follows:
"Received November 8, 1899, from Henry B. Hall, administrator of the estate of Emeline Hampton, deceased, the sum of $321.31. in full of my share of the personal property and real estate of said estate, which has been sold by said administrator, as the surviving husband of said decedent. Stephen K. Hampton.”
The fourth paragraph, in addition to the facts alleged in the second and third, in the prayer demanded that appellant ought not to maintain this suit, for the reason that the cause
The appellant says that the decision of this case is controlled by the fact as to whether the petition by the administrator was sufficient to confer jurisdiction on the court to order appellant’s land, as widower of said decedent, sold. The petition filed by the administrator, making Stephen K., William A., Harrison L., and Maud E. Hampton, William M. Patterson and the People’s Loan and Savings Association parties defendant, averred the following: That the personal estate of said decedent amounted to $87.37, as shown by the inventory and appraisement on file in said estate; that the indebtedness of said estate that has come to the knowledge of the administrator, including taxes and mortgages, amounted to $2,500; that the personal property would be insufficient to pay the taxes, debts and expenses of the administration, aside from the liens on the real estate; that there was filed and pending against the estate a claim of William M. Patterson on his note, secured by mortgage, for $1,775; that there was outstanding a tax certificate on said real estate for the sum of $80; that William M. Patterson held a mortgage executed by decedent and her husband ■ against the real estate in controversy, to secure the payment of said $1,775, which mortgage was recorded in mortgage record 25, page 87, in the mortgage records of Marshall
We find no error in the record, and the judgment is therefore affirmed.
Rehearing
On Petition for Rehearing.
In the ease of Lantz v. Maffett (1885), 102 Ind. 23, it was claimed that, in a proceeding to sell real estate by the administrator, the heirs were only required to meet the allegations of the indebtedness of the decedent, and no question of title to the real estate was involved. In the consideration of that case the court said at page 30: “If this assumption were correct, then there would be no reason for the petition to aver ownership in the decedent, or for making the heirs parties to answer as to their interests in the land. * * ® The fallacy of this argument is apparent; it unduly assumes that the heir is only challenged to meet the allegation of indebtedness; whereas he is challenged to meet that cláim and also meet the claim that the land was owned by the deceased, and is subject to sale for the payment, of his debts. One of the most important issues which the heir, or other party, is challenged to meet is the right of the administrator to sell the land. That such an issue should be met and settled is demanded by high considerations; it is demanded by the interests of society, which require the firm and speedy settlement of controversies; it is demanded for the security of purchasers at administrators’ sales; it is demanded for the benefit of heirs and creditors who have an interest in securing confidence in judicial sales, and it is demanded in order to give stability to titles and inspire confidence in the judgments of the courts.”
Appellant was made a party to the proceedings to sell said real estate. If, therefore, he believed he was the owner of one-third of the real estate described in said petition, and that the administrator of the estate of Emeline Hampton, deceased, was not entitled to an order to sell the whole thereof, he should have contested the ownership and the proceedings as to the right of said administrator to procure such
The petition for rehearing is therefore denied.