73 Ind. 149 | Ind. | 1880
— This was an action for partition. At the request of the plaintiff, the court which tried the cause made a special finding of the facts established by the evidence, which may be briefly stated as follows :
That, on the 13th day of May, 1876, one Robert Mc-Cracken was the owner in fee-simple, and in possession, of the land described' in the complaint; that at that time Ella McCracken, the plaintiff, was the wife of the said Robert, and has ever since continued so to be; that, on said 13th day of May, 1876, the said Robert filed his voluntary petition in bankruptcy in the District Court of the United States for
First. That the sale and conveyance of the land in suit by Beeson, as such assignee, to the defendants, as above-stated, was not a judicial sale within the meaning of the aet of March 11th, 1875, concerning certain inchoate interests of married women.
Second. That the provisions of that act apply only to-sales made under some judgment or decree rendered under the authority of the laws of this State.
Third. That before an action for partition can be maintained by a married woman, under the act of March 11th, 1875, supra, a demand must have been made by her upon the owner or owners of her husband’s late interest in the land which had been sold at a judicial sale.
The court, therefore, held that, upon the facts as found by it, the plaintiff was not entitled to have partition of the land in dispute, and, over her exceptions to the several conclu
According to the doctrine of the very carefully considered case of Roberts v. Shroyer, 68 Ind. 64, which has been decided since this cause was tried, the conveyance from Ray, as register, to Beeson, as assignee, in bankruptcy, was a judicial sale within the meaning of the act of March 11th, 1875, and the inchoate interest of Mrs. McCracken became a vested interest as soon as that conveyance was made.
The question as to whether a demand for partition was necessary before the commencement of this suit is one, perhaps, not entirely free from difficulty, but we have reached the conclusion that such a demand was not necessary.
The 1st section of the act of March 11th, 1875, provides, “That when such inchoate right shall become vested, under the provisions of this act, such wife shall have the right to the immediate possession thereof, and may have partition, upon agreement with the purchaser, his heirs or assigns, or upon demand, without the payment of rent, have the same set off to her.” Acts 1875, Reg. Sess., p. 178.
The proper construction of this provision appears to us to be, that when the wife shall be unable to obtain partition by agreement with the owner of the lands in which her inchoate interest has become so vested, she may demand to have her interest set off to her by the institution of compulsory proceedings for that purpose, thus recognizing her right to immediate partition as well as to immediate possession.
No previous demand has ever been held to be necessary for the maintenance of an ordinary action for partition, and we are unable to see any reason for believing that the Legislature intended to establish a different rule in cases like this-.
The general law for the partition of lands, 2 R. S. 1876, p. 343, sections 9 and 18, refers, in an incidental way, to a demand for partition, as the equivalent of an action for partition, and it is in that sense, we think, the word “demand”
The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
