117 Ind. 212 | Ind. | 1889
The complaint of the plaintiff, here the
“ Item 3d. To my son, Corydon W. Crossley, I give and bequeath the following real estate: The undivided one-half of the southwest quarter of section thirty-six, town.eighteen north, of range six east, also the sum of one thousand dollars, upon the following conditions: that he pay to my estate the sum of one thousand dollars upon the real estate already deeded to him, and the additional sum of one thousand dollars in consideration of the last above described real estate, said sum to be paid within ten years from the probating of this instrument.”
“ Item 8th. I give and bequeath to my beloved wife, Elvira, all my personal property after these bequests shall have been fulfilled, also the home farm on which we now reside during her natural life. At the death of my said wife I give and devise the real estate aforesaid to my daughter Caroline and my son Daniel Webster.
“Item 9th. The foregoing distribution will, in my judgment, equalize my property among my children, considering advancements already made to part of them not mentioned here. I do therefore give, devise and bequeath to my children aforesaid, and to their heirs, equally, the residue of my property and estate, both real and personal.”
These are the only portions of the will set forth in the pleadings. Corydon W. Crossley was named as executor, the will was duly admitted to probate and he duly qualified. Corydon W. Crossley, after the testator’s death, took possession of the land devised to him under the provisions of the will. Subsequently, he conveyed the land to James Jones, and by successive conveyances the land was conveyed to James H.
An action to quiet title brings before the court the claims of all the parties, and they must be set up in that action. If there is a valid outstanding lien or title the plaintiff must fail, because he is not entitled to a decree cutting off such lien or title. Indiana, etc., R. W. Co. v. Allen, 113 Ind. 308.
If, therefore, there was a valid lien subsisting in favor of the appellants, the answer is good and the replies are all bad.
We have no doubt that the will charged the land devised to Corydon W. Crossley, nor do we doubt that this lien, unless paid or discharged, continued in force in favor of the estate of the testator as against purchasers from Corydon W. Crossley, for, as the will is one link in their chain of title, they are chargeable with knowledge of its provisions. Porter v. Jackson, 95 Ind. 210, and cases cited.
The leading question presented by the first and second paragraphs of the reply is, was the lien paid or discharged ? The will makes the sum charged on the land payable to the estate, and when it was paid to the estate the lien was extin
The questions presented by the third paragraph of the reply, while they mingle with those presented by the first and second paragraphs, are more difficult than the question we have discussed and decided.
The complaint avers that the plaintiff is the owner in fee of the land; that, although the defendants claim some interest in it, they have no title or interest nor any lien. These averments imply that the plaintiff owns the entire estate, free from any and all claims of the defendants. Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581; Dumont v. Dufore, 27 Ind. 263.
The answer, if it avoids these allegations at all, avoids them, upon the theory of counsel, by showing that a third person has a lien; it does not show, however, that such a person has any title. The general rule is that a plaintiff in such an action as this must recover upon the strength of his own title, but we can not perceive how this rule can apply where the defendant does no more than show an outstanding lien in a third person who is not a party to the action. An answer by a party to the action, which confesses that the fee is in the plaintiff, may, pro tanto, defeat the action, where it shows that the defendant holds a lien; that is, it may, at least, secure to the lienholder a provision in the decree reserving, protecting or enforcing his lien. This, however, is not the case here, for the answer confesses that the fee is in the plaintiff, and that a stranger holds an outstanding lien. We suppose that a plaintiff owning the fee may have his title
As the record presents this case, the plaintiff owns the fee, subject to a lien in a third person, and we can not conceive of any principle which will enable the defendants to employ that lien to defeat the owner of the fee. The plaintiff has title even as against the lienholder, subject, of course, to the lien, but not subject to the claims of any other person than the lienholder. The lienholder could unquestionably employ his lien to defeat a decree completely barring his rights; he could not, however, use it to directly and effectually destroy title. The lien is a claim that may be enforced, but it does not constitute a title to the land.
Regarding the claim created by the will as a lien, it must be held that, upon the facts stated in the pleadings, the only person who can enforce it is the representative of the testator, since the will expressly provides that the money shall be paid to his estate. There may possibly be cases where devisees, legatees or heirs can enforce a lien for money due the estate of a testator, but no such case is made by the answer. The general rule is that only the administrator or the executor can enforce such a lien, and to take a case out of this general rule, if that be conceded to be possible, facts constituting the case an exception must be pleaded. Humphries v. Davis, 100 Ind. 369; Williams v. Riley, 88 Ind. 290; Begien v. Freeman, 75 Ind. 398; Westerfield v. Spencer, 61 Ind. 339; Ferguson v. Barnes, 58 Ind. 169.
We know of no rule that will permit heirs to enforce a lien where there is an executor, unless there is some allegation showing a neglect of duty on the part of the executor. Granting that the heirs may enforce a lien where the executor
If the will creates a lien on the land in favor of the estate of the testator, then it is evident that the third reply is good, irrespective of the allegations concerning the settlement with the widow as the residuary legatee, for it shows that there was a representative of the testator’s estate, and if there was an executor, he was the proper party to enforce the lien. If he failed in his duty, he might have been removed; or if he had been discharged, an administrator de bonis non might have been appointed. In truth, the answer is bad, if it be assumed that the will creates a lien, and a bad reply is good enough for a bad answer.
What we have said.fully disposes of the questions arising on the cross-complaint and the answers to it, for the cross-complaint proceeds on the theory that the provisions of the will create a lien, and the relief sought is that the lien be enforced against the land. It is a settled rule that a pleading must be good on the theory on which it assumes to proceed, or it will not be good at all. Mescall v. Tully, 91 Ind. 96, and cases cited; First Nat'l Bank v. Root, 107 Ind. 224; Lane v. Schlemmer, 114 Ind. 296.
There is, however, another phase of the case which requires consideration. The appellants’counsel say: “Under item 3 of the will Corydon W. Crossley took a conditional fee
Deciding, as we must and as we do, that the appellants are held to the theory constructed and presented by them, we must hold that, as that theory is that the will created a lien on the land, we can not with propriety reject that theory and advance one of our own, in order to reverse the judgment. We are, therefore, certainly not bound to inquire whether the will created an estate upon condition, which might be defeated by the failure to perform the condition, and this question we are not compelled to decide.
If we should, however, assume that the question is presented whether the devise was purely a conditional one, and should also assume that the estate was upon condition, still, we do not perceive how the appellants would be benefited. A condition once performed is gone forever, and if the money was once paid the condition perished. But more than this : “ Conditions are reserved only to the grantor and his heirs.They can not be reserved for the benefit of third persons. As
It would be necessary, even upon the hypothesis that the will created an estate upon condition, to show that the appellants had a right to defeat the estate, but this they do not do; on the contrary, they do not meet the allegation in the complaint that the appellee owns the fee, for all that they aver may be true and still the appellee have a right to quiet his title as against them. It is, of course, not possible for him to quiet his title as against persons not parties to the action, but he may, under the pleadings, quiet it as against the appellants, since, for anything that appears, they have no title at all and the appellee has the fee.
The view we have taken renders it unnecessary for us to decide whether the appellee’s counsel are right or wrong in asserting that “ The testator simply desired to state that his son owed him $2,000, and that it was to be taken into account in the settlement with him.” We have not discussed objections made by appellee’s counsel to the assignment of errors, and to the answer as being only a partial answer when it purports to be a complete one; nor have we discussed their point that the answer and cross-complaint are bad because they are joint, and the only right at all shown in the pleadings is not a joint right possessed by all the pleaders, although these objections are not only plausible but forcible.
We incline to the opinion that the appellee’s contention
In McCormick, etc., Co. v. Gray, 114 Ind. 340, the evidence was incorporated in the bill of exceptions. But conceding, although not deciding, that the evidence is properly in the record, the judgment must be affirmed upon the merits. Conceding still further, that the will created an estate upon condition subsequent, and that the appellants are the heirs of Conrad Crossley, the judgment is right, because there are no facts proved showing a proper exercise of the right of reentry (supposing such a right to exist), and courts will not enforce a forfeiture where such facts are absent.
Payment to the widow might, under the will, have been proper. If it was proper, and the executor did make it, then against the heirs (however it might be as to creditors), and in favor of a bona fide purchaser, the payment extinguished the condition, and a condition once gone is gone forever. If the executor erred in making the payment, it is doubtful if, as in favor of the heirs and against a bona fide purchaser, the estate could be forfeited.
The entire will is in evidence, and one item of it makes the widow the residuary legatee of all the personal property, and a settlement with her as such residuary legatee, evidenced by her acquittance reciting in full what Corydon ~W. Crossley had paid and had done, protects an innocent purchaser who bought in good faith, relying upon her acquittance, without notice and for full value, and such a purchaser is the appellee. Even if Corydon W. Crossley had been guilty of some wrong, the innocent purchaser should not suffer, since it was the residuary legatee who put it in his power to do the wrong. Quick v. Milligan, 108 Ind. 419 ; Lucas v. Owens, 113 Ind. 521.
We do not, however, mean to say that the evidence proves
Courts do not favor the forfeiture of estates for a breach of a condition subsequent, but adjudge a forfeiture with reluctance, and only in clear cases, and, surely, this is not such a case.
What we have said in discussing the pleadings shows that there is no lien which the appellants can enforce. In addition to what has been said, we may properly say that payment to the residuary legatee, or a settlement with her, extinguished the lien as against a good-faith purchaser.
Judgment affirmed.