44 Ind. App. 559 | Ind. Ct. App. | 1909
In this case the assignments of error question the sufficiency of the second and third paragraphs of the complaint, separately, to withstand a demurrer for want of facts, and allege that the decision of the court was contrary to law. The evidence is not in the record, and we shall give attention only to these paragraphs.
The allegations, common to both paragraphs, show that Margaret Jacobs, of Jay county, Indiana, died intestate, the owner of certain real estate in said county, leaving as her only heirs at law, her husband, Anderson Jacobs, and her daughter, Emma Jacobs, the latter a minor; that said named heirs on October 17, 1897, owned said real estate as tenants in common, and on said day Anderson Jacobs, by warranty deed, conveyed all of said real estate to Richard B. Maitlen and Ruth A. Maitlen, the latter the appellant in this appeal; that on November 16, 1899, Richard B. Maitlen and Ruth A. Maitlen, by warranty deed — a copy of which is made an exhibit — conveyed said real estate to Grant Maitlen, appellee herein; that thereafter, in November, 1899, Emma Jacobs, still an infant, died at Delaware county, Indiana, leaving no personal or other property, except her interest in said land
In the caption and in the body of each of these paragraphs the appellant and the children of Richard B. Maitlen are named as defendants, but the transcript before us does not show any notice to, or process issued for, such children, or any appearance to the complaint on the part of any one, except the appellant. The judgment was against appellant only.
In the third paragraph it appears that appellant and appellee, for the purpose of stopping the litigation looking to the sale of the land, entered into an agreement, whereby appellee, under a promise from appellant to reimburse him, paid and satisfied said claims.
These additional facts tend to show, if nothing more, the necessity for the action taken by appellee in order to prevent a sale of the land.
Judgment affirmed.