116 Ind. 103 | Ind. | 1888
This was a suit for‘partition, commenced •on the 7th day of March, 1881, in which William A. McCray and twelve others were plaintiffs, and John D. Humes was defendant.
The complaint alleged that the plaintiffs were the owners of one undivided half of two particularly described tracts of land in the county of Clinton, and that the defendant was the owner of the other undivided half of the same lands.
In its special finding the circuit court found the facts substantially as follows:
That on the 23d day of February, 1849, one John McCray was the owner in fee of the lands of which partition was demanded; that Mary Humes, named in the pleadings, was the sister of the said John McCray, and was then the wife of Cornelius Humes, the father of the defendant; that the said John McCray, on said 23d day of February, 1849, executed his last will, devising said real estate to the said Mary Humes and Cornelius Humes in the following words: “ I give and bequeath to my sister Mary Humes and Cornelius Humes, her husband, all my estate, both real and personal ; ” that after the death of the said John McCray, that is to say, on the 5th day of March, 1849, his said last will was duly admitted to probate in said county of Clinton; that Cornelius Humes .died intestate on the 14th day of March, 1852; that Mary Humes, who survived her husband, was the second wife of Cornelius Humes, by whom he had no children; that Cornelius Humes left as his children, and only children, by a former marriage, the defendant, John D. Humes, William Humes, Frances P. Byers, Eleanor Shepherd, Caroline Cochran and Sarah Thrush; that after the death of Cornelius Humes, Mary Humes,, as his widow, sought legal advice as to her interest in the real estate so devised to her and her husband by her deceased brother, John McCray, as stated, and was thereupon advised by counsel that she had become and was the owner of one undivided' half of such real estate, and no more, and that the said children of Cornelius Humes by his former marriage had become and were the owners of the other undivided half; that the said Mary Humes, relying upon the advice so given her, and believing that the same Avas in accordance with the law as applicable to the existing facts, asserted title thereafter to only one undivided half of the real estate in question; that
Upon the facts as thus found the circuit eourt stated its conclusions to be that the actings and doings of the said John D. Humes, and his brother and sisters, constituted an ouster of Mary Humes from and after the 3d day of September, 1856, at, which time the statute of limitations began to run as against her; that at her death the statute continued to run against the plaintiffs; that in consequence the cause of action was, before the commencement of this suit, barred by the twenty years statute of limitations.
It was held in the case of Nutter v. Hawkins, 93 Ind. 260, that it is the fifteen years statute of limitations which is applicable to a suit in partition, and it is contended that, as the second paragraph of answer in this case set up the twenty years statute of limitations as a defence to the demand for partition, the demurrer ought to have been sustained to that paragraph, relying upon the case -referred to, as necessarily leading to that conclusion. In that case the fifteen years statute was pleaded in one paragraph of the answer, which was held to be sufficient upon demurrer, and the twenty years statute in another paragraph, to which a demurrer was sustained. In reviewing that branch of the case, this court came to the conclusion that no error was committed in sustaining the demurrer to the last named paragraph, and in any view the conclusion then reached was substantially correct, as the defendant had the benefit of the .fifteen years statute as a defence. Having reference, therefore, to the 'questions really there decided touching the statute of limitation, that case was not a parallel one with the case at bar.
Under our civil code the facts stated in a pleading determine the rights of a party as well as his remedy. If the facts make a case for a legal remedy, then a legal remedy ought to be applied. If the case made is one calling for equitable relief, then the party becomes entitled to that form' of relief.
The greater includes the less, and if, upon the facts alleged, John D. Humes had been in the adverse possession of the real estate for twenty years before the commencement of this suit, he must have been for as much as fifteen years; hence the concluding averment that the cause of action did not accrue within twenty years before the commencement of the suit, amounted to no more than an informal conclusion not affecting the substantial sufficiency of the facts from which it was drawn. The circuit court did not, consequently, err in overruling the demurrer to the paragraph of answer under consideration.
The special finding of the facts is impliedly conceded to be rightfully in the record, and we proceed upon that assumption. Under the will of John McCray, Mary Humes and her husband, Cornelius Humes, became tenants by entirety in the lands devised to them, and on the death of her husband Mary Humes became the owner of the estate in the lands as his survivor. Upon legal advice to the contrary, however, she elected to assert title to only one undivided half, and to recognize the children of her deceased husband as the owners of the other undivided half, and, consequently,' as tenants in common with her in the lands. The conveyance by her to John D. Humes of one undivided half carried with it the right of possession of the estate conveyed, and the fair inference is that she was never afterwards in possession of any part of the lands, and that she never thereafter asserted any claim to the right of possession. It was, on the contrary, expressly found, in effect, that immediately after the conveyance John D. Humes took immediate and exclusive possession of the lands, adversely to Mary Humes, under a claim that he had become the owner of one undi
■ The possession of one person, recognized as a tenant in common with others, is the possession of all. Bowen v. Preston, 48 Ind. 367.
This exclusive possession under a claim of title would have been an ouster of Mary Humes if she had really been a tenant in common. But she was not. She had been, as has been shown, the owner of the entire estate, but on account of erroneous advice given her had declined to assert title to more than one-half. She had conveyed one undivided half, all the interest she claimed in the lands, to John H. Humes, and voluntarily left others in the possession of the remaining half under an adverse claim of title, and under circumstances which, if continued long enough, would eventually bar her right to recover such remaining half.
This was not all she did adversely to her claim of title. She afterwards, as has been seen, advised John D. Humes to purchase the claims of title asserted by his brother and sisters, upon the ground that by so doing he would acquire a complete title to all the lands; and this he did accordingly.
Herman on Estoppel, at section 955, on page 1080, says: “A mistake as to the law forms no ground for reforming a contract, yet where a party, acting under a mistake of law or of fact, does acts which mislead the adverse party, he is estopped, as well as if he was not acting under such mistake,” and proceeds to give illustrations of the application of that doctrine.
In the next succeeding section he further says, that “ There is a vast difference between standing by without taking measures to stop a sale and warning the purchaser, or even answering such questions as he may choose to put, and taking an active part in the transaction, or inducing him to purchase by advice or persuasion. Good faith, generally an excuse in the former case, is insufficient in the latter, for in
Applying these general principles to the pertinent facts found by the circuit court, there is much plausibility in the claim that, upon a general view of.the facts, Mrs. Humes became estopped from asserting title to any part of the lands in suit. But the point is made that all the facts affecting the question of title were equally well known to both of the parties, and that, consequently, the mistake as to the law applicable to those facts was mutual in that sense which excludes, and to the extent of excluding, an estoppel. As, however, the judgment will have to be affirmed upon other grounds, we need not consider whether, in every view of the case, Mrs. Humes really became estopped from asserting title as against John D. Humes.
Aside from any question of estoppel, this suit was, for the reasons already stated, barred by much more than fifteen years of adverse possession before it was commenced. While, therefore, the conclusions of law drawn by the circuit court were not technically well formulated, no substantial injury was thereby inflicted on the plaintiffs, and they have hence no cause of complaint.
This cause was tried before the Hon. Thomas J. Terhune, who was then the regular judge of the Clinton Circuit Court, on the 24th and 25th days of March, 1882, and having been requested to make a special finding of the facts, the cause was taken under advisement. The special finding was not filed until the 7th day of July, 1885, and no excuse is shown for the delay.
In the meantime an act was passed constituting the 45th judicial circuit, which embraced only Clinton county, and as Judge Terhune did not reside in that county, the Hon. Allen E. Paige had become the judge of the Clinton Circuit Court. Acts of 1883, p. 58. The special finding was filed during the
The particular proceedings which include the special finding purport to have been held before Judge Paige, but the finding is signed “ T. J. Terhune,” without any explanation of record as to why it was so signed. Counsel for the appellants assume that Judge Terhune appeared in the circuit court, and, without authority, proceeded to make and to file the special finding, and make the point that on that account, as well as because of the long delay, the special finding is void. In the first place, the assumption that Judge Terhune appeared in the circuit court on that occasion is not sustained by the record. In the next place, the seventh section of the act creating the 45th judicial circuit provided in its legal effect, that all questions at the time pending in the Clinton circuit court before "Judge Terhune might thereafter be decided by him. In the third place, when a judge holds a cause under advisement for more than sixty days, without objection or question, the presumption ought to be indulged that he had a lawful excuse for the delay. R. S. 1881, section 551. No objection to either the making or the filing of the special finding seems to have been made at the time it was filed. Consequently the questions sought to be made upon the special finding are not in the record. Besides, a special finding not signed by the judge, nor made a part of the record either by an order of court or by a bill of exceptions, can not be regarded as having been made in compliance with section 551 of the civil code, and hence must be treated only as a general finding. Buskirk Prac. 205; Conwell v. Clifford, 45 Ind. 392; Shane v. Lowry, 48 Ind. 205; Bake v. Smiley, 84 Ind. 212; McClellan v. Bond, 92 Ind. 424.
As Judge Paige is made to appear as having presided in the cause when the special finding was made, his name, if any one, ought to have been attached to the special finding, and, upon its face, it is, in that respect, defective in not having been signed by him. Not having been otherwise made
The judgment is affirmed, with costs.