48 Ind. App. 437 | Ind. Ct. App. | 1911
Appellants assert title to an undivided interest in certain lands in Ripley county, Indiana, and in their complaint ask that their title be quieted and that they have partition. Defendant Joseph Kraus disclaimed any interest in the land, and defendant Dora Thomas (formerly Dora Kraus) filed an answer in general denial, and also a second paragraph, which may be termed an answer in estoppel, and which contained, in substance, the following averments: That for more than twelve years she had been the owner, and in possession of the real estate described in the complaint; that she and the plaintiffs are the children and only heirs of Henry Kraus and Sophia Kraus, his wife, both deceased; that Henry Kraus died in 1895, the owner of the real estate described in the complaint, of which he had been in possession from 1845 to 1895; that his estate was worth less than $500, and it had been set off to his widow by a decree of the court in a proceeding filed by her for that purpose; that the widow remained in possession of the land until January 12, 1906, when she conveyed it by deed to appellee Dora Thomas and she has been in possession of it ever since.
It also appears in this answer that at the time the petition was filed by the widow, and during all the time her action to have her husband’s estate set over to her, was pending, all the plaintiffs were residents of Ripley county, and no objections were ever made by any of them to the entering of the decree, until after the deed was made to said appellee, when they filed their suit, asking that such deed be set aside, for the reason that said widow was of unsound mind when she executed it, that it was made without consideration, and because of undue influence. It appears from the record, however, that this complaint was abandoned, and the complaint now before us followed.
Said appellee also filed her cross-complaint, in which she
“fifteen acres off of the north end of the northeast fourth of the southwest quarter of section twenty-three, township six, range ten east; all the southwest fourth of the southeast quarter of section twenty-three, township six, range ten east; also, twenty-five acres off of the south side of said section twenty-three; ”
that the only real estate belonging to Henry Kraus that was correctly described in said petition, was the fifteen acres aforesaid (to which appellants make no claim), and that the remainder of the land was intended to be described as the northwest fourth of the southeast quarter of said section twenty-three, and as twenty-five acres off the south side of the northeast fourth of the southwest quarter of section twenty-three; that the grantor of Henry Kraus placed him in possession of the land, which was intended to be so correctly described, immediately after the deed was prepared, and he remained in undisputed possession thereof until his death, and the land so occupied by him, including the fifteen acres correctly described, was the only land that he possessed in said section twenty-three; also, that the land actually occupied by said Kraus was the identical land viewed and appraised in the widow’s petition, when the appraisers duly appointed made the appraisement, and reported to the court that decedent’s estate was worth less than $500, and was the same land that has been occupied by said widow since the decree of the court vesting all her husband’s estate in her.
The record discloses two prayers for relief: one that the record and decree vesting the estate in the widow be corrected to contain the proper description, and the other that
We shall consider the alleged error that is properly presented, and* that is the important question in this appeal. It will be observed that the cross-complaint was not a cross-complaint to correct the record, but one in which said appellee asked that her title be quieted. This theory was relied on by said appellee as a result of appellants’ motion to require her to make an election. This, appellants have evidently forgotten; as they discuss at much length the inherent power of the court to correct an error in a judgment.
Judgment affirmed.