142 Ind. 419 | Ind. | 1895
An abstract of the pleadings, as set .out in the appellants’ brief, and as admitted to be correct by appellee, shows substantially, that the action was by appellee against appellants, his minor children, to quiet title to real estate.
A guardian ad litem was appointed for appellants and -tiled an answer, and also a cross-complaint, to each of which a demurrer was sustained. This ruling is assigned as error.
. The facts stated in the answer and in the cross-complaint are the same, and are briefly as follows:
That Clay M. Kirby, who was the father of appellee, and the grandfather of appellants, was during his lifetime the owner of the land in controversy, and by his last will devised the same to appellants; that after the death of said testator and the probate of his will, the appellee and the other children of the decedent wrongfully conspired and confederated together to deprive the appellants of said land, and to distribute the same among themselves; that, in pursuance of such conspiracy, they.
We are of opinion that the allegations thus made of fraud upon the minors in the procurement of the decree setting aside their grandfather’s will in their favor, should have been submitted to the court for trial'upon the evidence. It seems clear either that a fraud was practiced upon the court, or that the court was itself ■derelict in its duty. The rights of infants are peculiarly within.the custody of courts, and the responsibility so placed by the law should not be lightly regarded. Too often, also, guardians ad litem look upon their duties to the minors, for whom they answer, as a mere formality.
If the decree complained of was wrongful, as alleged, and this wrong was due to the fault of the court or its ■officers, it may be that the wrong is irreparable, being secured by che judgment from collateral attack. If, however, as alleged in the cross-complaint, and as admitted by the demurrer, the court was imposed upon by appellee and the other children of Olay M. Kirby, and its decree thus procured by fraud upon the minor ■defendants, the attack here made would be direct, and not collateral, and should prevail. Nealis, Admr., v. Dicks, 72 Ind. 374; Earle v. Earle, 91 Ind. 27; Brown v. Grove, 116 Ind. 84; Brake v. Payne, 137 Ind. 479; 2 Pom. Eq. Juris., section 919; Bigelow Fraud, 172; see also Grimes v. Grimes (Ill.), 32 N. E. Rep. 847;
The judgment is reversed, with instructions to overrule the demurrer to the answer and to the cross-complaint, and for further proceedings.