107 Ind. 121 | Ind. | 1886
Appellant brought this action to recover from Willard Carpenter, Alvin B. Carpenter and J. Augustus Lemcke, the undivided one-half of “the southwest half of lot 86,” in the old plan of Evansville.
The facts .in the case, as developed by the record, are sub
On the 17th day of June, 1840, Amory conveyed his interest in the southwest half of the lot to Abraham Hutchinson and his wife, appellant, which deed was duly recorded on the 21st day of July, 1840. Abraham Hutchinson being indebted to Alvin B. and Willard Carpenter, he and appellant, ■on the 25th day of October, 1841, executed and delivered to the Carpenters what appellant’s attorneys call a trust deed, ,and what appellees’ attorneys insist was a mortgage, covering the portion of the lot here in dispute.
The granting portion of the instrument is in form an absolute warranty deed, in consideration of $1,960. It closed with the following: “And provided, however, and these presents are made as a deed of trust subject to the trust and conditions hereinafter mentioned. That is to say, that whereas A. P. Hutchinson is indebted to the said parties of the. second part in the sum of $1,960, due and payable in one year from the date hereof, with interest at the rate of 6 per cent, from date : Now, therefore, should the said Hutchinson well •and truly pay the said party of the second part the said sum of money as above provided, with interest as aforesaid, then these presents shall cease and be null and void; but in case of the non-payment of the said sum. of money, or any part thereof, as above specified, it shall and maybe lawful for the said Carpenters, their agent or attorney, to sell said half-lot at public auction to the highest bidder, having first given thirty days’ notice in the nearest public newspaper printed in the State, of the time and place of said sale, and therefor to make to the purchaser a good and sufficient deed in fee simple, .applying the purchase-money towards the liquidation of said debt and expenses of sale, and returning the surplus, if any, and from thence all equity of redemption in said premises .shall cease and determine; said "parties of the second part
This instrument was recorded on the 9th day of November, 1841.
Abraham Hutchinson died on the 30th day of May, 1842, -without having paid to the Carpenters the $1,960, or any portion of it. It has not been paid, unless, as alleged in the ■complaint, it has been paid by- the rents and profits of the premises, in the possession of appellees, or paid by Hutchinson’s administrator.- The premises were never sold by the Carpenters, nor by any one else as provided in the trust deed ■or mortgage, nor has that instrument ever been satisfied of record.
Abraham P. Coleman was appointed administrator of the -estate of Abraham Hutchinson. On the 11th day of August, 1842, Coleman, as such administrator, filed a bill in the probate court of Vanderburgh county against appellant and her children, all minors, and the Carpenters, in which he alleged, -amongst other things, that the personal estate was insufficient to pay Hutchinson’s debts; that- he died possessed, and the owner, of the half-lot here in dispute; that it was mortgaged to the school commissioners to secure thepaymentof $179.40; that in 1841 Hutchinson was indebted to the Carpenters upon a judgment in the sum of $187.68, which they were threatening to enforce by execution; that being thus pressed, and in danger of being financially ruined by such execution, and being induced by threats and promises by the Carpenters, ho agreed to, and did, take a loan from'them of $805.75, which, with the amount of the judgment, made his indebtedness to 'them $1,000; that $960, by way of interest, was added, but was to be treated as a part of the principal debt, making the whole $1,960 to be paid in one year, with 6 per cent, interest thereon, and secured by the trust deed or mortgage; that the 'Carpenters, to avoid a possible defence of usury, assigned to Hutchinson worthless accounts, to the amount of $960, with
She and the Carpenters having been subpoenaed and not appearing, the bill was taken as confessed, and it was adjudged and decreed that the Carpenters were entitled to $1,-067.56, that all of the balance was usurious and void, that the deed from Hutchinson to the Carpenters was intended to be, and was, a mortgage, and that the widow and children had the right to redeem. An order was made authorizing the administrator to sell the real estate1, and directing him to apply the proceeds to the payment of the Carpenters’ claim,, and the residue, if any, to the payment of the general debts, against the estate.
On the 27th day of December’, 1843, the administrator sold the half-lot in suit to Willard Carpenter for $1,000, the building having been burned before the sale. On the 12th day of February, 1844, the sale was reported to and approved and confirmed by the court. The administrator’s deed to-Carpenter, executed on the 24th day of February, 1844, was-recorded on the 16th day of August, 1844. On the 29th day of May, 1844, Alvin B. Carpenter and wife, in settlement of his 'partnership affairs with his brother, executed and deliv
There was evidence adduced upon the trial, that shortly after the fire, and before the sale by the administrator, Willard Carpenter assumed to be in the possession of the half-lot, by going upon it and removing the debris therefrom.
For the purposes of a decision upon the instructions, if ¡such a decision shall be found to be necessary, such possession may be taken as an established fact. There was evidence .also that no possession was taken by either of the Carpenters until after the sale by the administrator and the execution .and delivery of his deed to Willard Carpenter, and that possession was taken by Willard Carpenter under and by virtue1 •of the administrator’s deed, and not otherwise. For the purposes of a decision of the case upon the evidence, that fact must be taken as established. The evidence shows that in March, 1845, after the execution of the administrator’s deeds, Willard Carpenter took complete and exclusive possession of the half-lot, and, at an expense of at least $2,00.0, erected permanent business buildings thereon, which, with out-buildings, covered the whole, or nearly the whole, of the half-lot.
Aside from the Carpenters, the several purchasers had no-notice of appellant’s rights, except such as the records afforded, and they had no actual knowledge of her claim under the Amory deed.
It is not shown by the evidence how much rent was collected by the Carpenters, nor is it shown by the evidence what the rental value of the property was, while it was held by the Carpenters, or since.
The first trial below resulted in a verdict for appellant. After verdict, and without any judgment thereon, the court granted a new trial under the statute, as a matter of right.
Mr. Palmer, as amicus curies, makes the point that under the statute the court had no right to grant a new trial without cause, and as a matter of right, until after the rendition of judgment, and that, hence, the order granting a new trial was a nullity, and that the judgment should be reversed, and the case left to be disposed of under the first verdict. If there had been an objection and exception to the granting of the new trial, there would be force in the point made. By proceeding to try the case a second time, without such ob
It is assumed by counsel for appellant, and tacitly conceded by counsel for appellees, that the deed from Arnory to her and her husband made them tenants by entirety of an undivided one-half of the half-lot in dispute, and that by the death of her husband appellant became the absolute owner of the undivided one-half of the half-lot, and entitled to dower in the other undivided one-half.
Without entering into a discussion of the question, we assume that such were the rights of appellant. There is no-question of dower involved in this case. The action is to recover an undivided one-half of the half-lot, upon the theory that she became the absolute owner of it by the death of her husband.
In the outstart, appellant’s counsel argue that the probate court had no authority to order the sale of appellant’s undivided half of the half-lot, that her rights and interests therein were in no way affected by the proceedings in the probate court, and the administrator’s sale and deed based thereon. This argument is rested upon the cases of Hanlon v. Waterbury, 31 Ind. 168, Kent v. Taggart, 68 Ind. 163, Elliott v. Frakes, 71 Ind. 412, Armstrong v. Cavitt, 78 Ind. 476, and Compton v. Pruitt, 88 Ind. 171.
The case of Hanlon v. Waterbury, supra, was an action by a widow for partition, she claiming to be the owner of the undivided one-third of the lots as widow, and asserting that the defendant was the owner of the other two-thirds by virtue of a sale by the administrator of her husband’s estate. The defendant answered, alleging that upon the petition of the administrator to the court, he had been' ordered to sell, and had sold and conveyed, the whole of the lots; that the defendant had purchased them, believing that he was getting title to the whole of them, and asked that the heirs might
In the case of Kent v. Taggart, supra, the widow was not a party to the proceedings by the administrator for the sale of the real estate of her husband, and, of course, was not bound thereby.
The case of Elliott v. Frakes, supra, was an action by two children to recover real estate which they claimed as devisees of their mother. The leading facts set up in their complaint are, that their father died in 1854, the owner of real estate, and left surviving their mother as his widow; that by virtue of her marital relations, she became the owner in fee of the undivided one-third of the real estate; that, having willed that third to the plaintiffs, she died in February, 1856. The answer by the defendant, not denying the averments in the complaint as to the surviving widow and her will, s.et up the appointment of an administrator of the estate of the husband, and an order for, and the sale of the whole of the real estate by the administrator after the death of the widow, and the purchase of it by the defendant, and that the plaintiffs were parties to that proceeding. It was held, that, by not denying, the answer admitted the survival of the widow, to whom one-third of the land descended in fee simple. It was said: “ Upon the facts thus admitted, the common pleas court
The case of Armstrong v. Cavitt, supra, was an action for the partition of real estate by the children and heirs of Armstrong, deceased. They alleged in their complaint that their father left surviving a second wife, who had since died without children, and that they thereby became the owners of the one-third of the real estate which had descended to her from their father. The defendants answered that the administrator of the estate of the plaintiffs’ father had applied for an order from the court to sell the whole of the real estate of the father for the payment of debts against the estate; that to that proceeding the plaintiffs and the widow were made parties by proper notices; that the plaintiffs appeared and .answered by guardian ad litem, and that the widow was defaulted; that the court found that the widow was owner of ;a life-estate in one-third part of the real estate, and ordered ■the whole of it to be sold subject to that life-estate; that after-wards the widow consented that her so-called life-estate might fee sold also by the administrator, and he sold the whole of ithe real estate, and paid over to the widow the value of her life-estate. It was held that under the statutes of descents, upon the death of the widow, the share which descended to her would descend to the plaintiffs, children by the first wife. It was also held that so far as the administrator’s petition
The case of Compton v. Pruitt, supra, was an action for partition by a widow. The defendant answered that the administrator of the estate of the plaintiff’s husband procured am order to sell the entire fee simple of the land to pay the debts, against the estate; that the plaintiff was a party to that proceeding; that in pursuance of the order, the administrator sold the- whole of the land, and that the purchasers, with the' knowledge of the plaintiff, took possession, and had occupied the land in good faith for ten years, and claimed to own it in fee simple. In deciding the case, Bicknell, C. C., quoted section 75, 2 R. S. 1876, p. 519, which gave the court authority to sell the real estate of the deceased, and said that that section gave the court no authority to sell the wife’s, land; that when the husband dies his wife’s one-third is no> longer the real estate of the deceased. After quoting the' statute which provides that the petition by the administrator for a sale of real estate shall contain “a description of the real estate of the deceased, liable to be made assets for the payment of his debts, or so much thereof as the executor or administrator may deem it necessary to sell,” it was said: “ In this case the petition stated that the decedent died seized of the land, etc., leaving a widow. That was equivalent to a statement that only two-thirds of it was liable to be made assets.. It notified the court and all parties in interest to that effect, as fully as if the language had been that of clause 3, supra„
These decisions have been approved in later cases, and we have no doubt stated the law of the cases in which they were pronoxmeed correctly. Flenner v. Travellers Ins. Co., 89 Ind. 164; Nutter v. Hawkins, 93 Ind. 260; Matthews v. Pate, 93 Ind. 443; Pepper v. Zahnsinger, 94 Ind. 88; Clark v. Deutsch, 101 Ind. 491; Frakes v. Elliott, 102 Ind. 47.
A careful examination of the cases above cited and stated will show that they rest, in the main, upon the propositions;
First. That the courts have no authority to order the sale of lands to pay debts against the decedent’s estate except the lands belonging to, and forming a part of, the estate.
Seeond. That upon the death of the husband, one-third, one-fourth, or one-fifth of his real estate, according to the value of the whole, descends to, and becomes the property of, his widow in fee simple, free from all demands of creditors, and does not belong to, or form a part of, the decedent’s, estate.
Third. That parties to a proceeding by the administrator to obtain an order for the sale of real estate to pay debts are bound, and only bound, in the capacity , in which they are sued.
It results from these propositions, that in no case can the •court, under our present system, for the purpose of paying -debts against the estate, order the sale of the portion of the real estate which the widow owns by reason of her marital rights. If she is not made a party to the proceedings by the .administrator to procure an order for the sale of the real estate, of course, neither she nor her rights can be affected thereby. If she is made a party to such proceedings as a widow, the record will affirmatively show her rights; that as such widow she owns a part of the real estate; that the portion which she thus owns is not a part of the estate liable for the debts, and hence can not be sold for that purpose. And thus the record will .be notice to the court and to the world that her portion of the real estate can not be, and has not been, sold by the administrator. A statement of the real estate of which the decedent was the owner is necessarily a ¡statement that the widow owns a portion of it, which is not ¡subject to sale by the administrator.
The above cases are not conclusive or controlling here. Under the law in force at the time the probate court ordered the sale of the half-lot, and until the statute of 1852, the' widow did not take a fee in any portion of her husband’s real «estate, but only a dower interest. The probate court, therefore, had authority to order the sale, and direct the conveyance, of the fee to the whole of the real estate of which appellant’s husband was the owner at the time of his death.
The Carpenters had a conveyance for the half-lot, as we have seen, absolute in form, with power to sell and apply the proceeds to the payment of the $1,960, purporting to be due
It was alleged in the bill that appellant’s husband died possessed, and the owner, of the entire half-lot. The bill showed upon its face that appellant was the widow of the decedent, and while that might show that she, as such widow,, was entitled to dower, it would not show that she had any other interest in the half-lot. The bill, therefore, was not notice to the court, nor to any one else, of appellant’s rights-under the deed from Amory to her and husband. She was-the owner of the undivided one-half of the half-lot by virtue of that deed and the death of her husband, and not by virtue' of her marital relations only, as in the cases above noticed.. As we have said, one purpose of the bill was to settle the title, so that the half-lot might be sold as realty, forming a part of the estate. Appellant was properly notified to appear and answer the bill, neglected to do so, it was taken as confessed, and the whole of the half-lot was ordered sold. The bill notified appellant that the administrator was claiming the whole of the half-lot as a part of the estate, and asking- for its sale as such.
It was stated in the bill, it is true, that she was the widow of the decedent, but the averments of the bill, taken together j amounted to an averment that she had no rights in the half-lot except as widow. The bill was a challenge to her to resist the claims of the administrator and assert her title. She knew that as widow simply she took nothing in the undivided
The record of the proceedings contained nothing to give notice to the court or to any one else of appellant’s rights under the Amory deed, nor to put any one upon inquiry. Under the law as applied to the facts in the case, appellant can not now be heard to say that she was the owner of the undivided half of the half-lot, and that the sale under the orders of the court is a nullity. ¥e are amply supported in this conclusion by the recent case of Lantz v. Maffett, 102 Ind. 23, which involved these facts: A widow and mother took one-third of her deceased husband’s real estate. She subsequently married, and died during coverture. Under the law as applied to these facts, the real estate, which descended to .her at the death of her first husband, at his death, descended in fee simple to her children by that husband. After her death, however, an administrator of her estate was appointed. He petitioned the court for an order to sell the realty to pay the debts against her estate, and alleged therein that she was the owner thereof in fee. To this petition and proceeding her children by her first husband were made parties, and answered by a guardian ad litem. The real estate was ordered to be, and was sold by the administrator. The children subsequently brought an action against the 'purchaser, and, by the judgment of the court below, recovered the real estate. The purchaser appealed, and this court, reversing the judgment, held that the court had jurisdiction to try and determine the question of title to the real estate sought to be sold
As to the title to the lialf-lot, and any claim of appellant thereto, "Willard Carpenter, as any other person might have done, had a right to rely upon the record of the proceedings which resulted in the order of sale. That record showed an .adjudication that the half-lot belonged to and was a part of the estate of appellant’s deceased husband, and that she had •no interest therein.
With much ability and research, appellant’s counsel argue ■ at length that Willard Carpenter could not hold the half-lot under his purchase from the administrator, and that his purchase enured to the benefit of appellant. This argument is based upon the contention that he was a trustee under the instrument, which they insist was a trust deed, and that as such trustee he could not purchase and hold the property which ho held for his cestui que trust, and that he could not deal with .the property, except to sell it as in the instrument provided.
It is not necessary.for us to express an opinion as to whether that instrument was simply a mortgáge to secure a •debt. That question Avas settled by the probate court in the proceeding already noted, in which the administrator, the •Carpenters and appellant were parties. That court had the undoubted right to settle that question in that proceeding, and did settle it, by adjudicating and decreeing that the instrument was a mortgage simply, from which appellant and .the heirs might redeem. It was not left for the Carpenters to sell under the power of sale contained in the mortgage. The effect of the judgment and decree was that the Carpenters could not, and should not, sell the property to make their ■claim, because it Avas adjudged and decreed that the administrator should sell it and pay off the Carpenters’ mortgage. The court thereby took the property into its custody to be ■disposed of as it had directed. •
Aside from the questions of the power of the probate court to order the sale, and the right of Carpenter to purchase, appellant makes no question as to the regularity of the probate proceedings which resulted in the sale, except a question that the administrator’s deed was prematurely made. The record'does not affirmatively show that fact, and if it did it would: make no difference, as appellant commenced no action to recover the half-lot within five years from the time the sale by the administrator was confirmed by the court. Vancleave v. Milliken, 13 Ind. 105; Vail v. Halton, 14 Ind. 344; Nave v. Tucker, 70 Ind. 15; White v. Clawson, 79 Ind. 188; Gray v. Stiver, 24 Ind. 174; Brenner v. Quick, 88 Ind. 546; Hatfield v. Jackson, 50 Ind. 507; Wright v. Wright, 97 Ind. 444.
The judgment of the court below in favor of appellees is-right upon the evidence, aside from any question of the twenty-years’ statute of limitations.
It is not improper to note in passing, however, that front the time Carpenter received the deed from the administrator in 1844, until this action was commenced in 1881, he and
There is no available error in the refusal of instructions asked by appellant. In the first place, they were not signed by appellant, nor by her counsel, as the statute requires. R. S. 1881, section 533; Jeffersonville, etc., R. R. Co. v. Vancant, 40 Ind. 233; Terre Haute, etc., R. R. Co. v. Graham, 46 Ind. 239; Sutherland v. Hankins, 56 Ind. 343; State, ex rel., v. Sutton, 99 Ind. 300, and cases there cited. In the second place, some of them are based upon the theory that the orders and decree by the probate court, and the sale by the administrator, were nullities, and that notwithstanding that decree and the sale and the purchase by Willard Carpenter, he held and possessed the half-lot as appellant’s trustee. They were, therefore, based upon an erroneous theory, and were properly refused. Others are based upon the theory that the orders and decree of the probate court, the sale by the administrator, and the purchase by Willard Carpenter were nullities so far as concerns the interest now claimed by appellant, and that hence, as to that interest, Carpenter and his grantees were tenants in common with appellant. Here again, the theory is a false one, and the instructions for that reason were properly refused.
It can make no difference whether Carpenter may have taken possession before or after the sale and deed by the administrator. Under the judgment and decree of the probate court, to which all interested persons were parties, he could no longer be regarded as in any sense a trustee. Under the conclusions we have felt constrained to adopt as to the force and effect of the proceedings by the probate court, the instructions given by the court upon the trial below were more favorable to appellant than they should have been. The giving of them, therefore, can not be urged by her as an available error.
It results from our holding that the judgment must be affirmed. It is, therefore, affirmed at appellant’s costs.