121 Ind. 360 | Ind. | 1890
— This is an appeal from a judgment rendered in an action instituted by Julia Millis, and her husband, and two others, against John Roof. The purpose of the suit was to quiet the title in the plaintiffs to the undivided three-fourths of a certain tract of land described in the complaint. The court made a special finding of the facts, and stated its conclusions of law thereon, and the propriety of the conclusions of L,w stated-is the only question presented for decision.
The only facts necessary to be stated are, that Michael Lewis died intestate, in the year 1847, seized of 120 acres of land in Henry county, leaving a widow and eleven children, who inherited his estate. Under the law as it then stood, the widow took, as dower, an estate for life in the one-third of the real estate owned by her husband at his death. Subsequently an unmarried daughter died intestate, whereupon one-half of her interest in the land was cast upon her mother, and the other half upon her surviving brothers and sisters. The interest of the widow had never been assigned or set off to her. Later on eight acres, out of the 120-acre tract, were set off, in partition proceedings, to John Conner, the grantee of one of the heirs, and still later, by like proceedings, forty-five acres more were set off in a body to James
In support of the judgment below, it is asserted that the conclusions of law were correct, because the widow only acquired a small fraction of an interest in fee simple through the death of her daughter, her interest as widow being merely an estate for life in the undivided one-third, and that Larvin, her grantee, could acquire no greater interest than she had, and that the title of the plaintiffs can not rise higher than the source from which it was derived.
It will be observed that this is a controversy involving the respective interests of tenants in common in real estate, all of whom claim title from a common source. Both parties claim through Larvin, who while in possession under a deed for the whole, assumed to convey a fee simple title to the whole tract by a warranty deed to Mary E. Ramer, in 1865. Neither asserts any other title except such as they derived through the common source. The case, therefore, falls within the inflexible rule which holds that when two or more persons claim title to real estate under the same grantor, and through the same deed, neither will be permitted to deny that the grantor had the title which he assumed to convey. As between those claiming under the same instrument, it will be conclusively presumed that their common grantor had the title which he assumed to convey by the deed under which both claim, and the plaintiff in establishing his title need not go back of their common grantor. If the defendant asserts any other or superior title, or a title adverse to that under which the plaintiff claims, it lies upon him to
This rule has peculiar force and application between tenants in common. Accordingly it is uniformly held that one tenant in common can not deny the validity of the common source of title, while he himself claims, or remains, in possession under it; nor will he be permitted, while remaining in possession, to defend himself by proving a paramount title in some third person. Where the title or interest of tenants in common accrues under the same instrument, or act of the parties, or of the law, neither can deny the validity of the instrument, or act, and each is bound to preserve the estate in good faith for the equal benefit of all. Bender v. Stewart, 75 Ind. 88; Hadley v. Musselman, 104 Ind. 459; Phelan v. Kelley, 25 Wend. 389; Olney v. Sawyer, 54 Cal. 379; Knolls v. Barnhart, 71 N. T. 474; Keller v. Auble, 58 Pa. St. 410; Frentz v. Klotsch, 28 Wis. 312; Freeman Cotenancy, section 152; Sedgwick & Wait Trial of Title to Land, section 291.
It is only where one asserts an interest acquired from a source disconnected from that of his co-tenants that he can dispute the validity of the interest held by them. It follows, that, as between the parties to this controversy, it is immaterial what the actual interest was which Larvin acquired. Since, being in possession, he assumed to convey a fee simple by a deed of general warranty, through which both parties claim title, both are now estopped to assert that this title and possession of their common grantor were not in conformity with his deed. The appellee having entered and continued in possession under that title can not,-without connecting himself with some independent chain, or source, of title, draw the one in question under which he claims in common with his adversaries.
This conclusion in no way militates against the rule that a person suing in ejectment, or to quiet his title, must affirmatively prove title in himself, and can not rely on the want of title in his adversary. The plaintiffs had shown title in themselves as against the defendant below, when they showed the title of their common grantor.
Whether or not the parties were concluded by the several partition proceedings, so that the title acquired by Larvin could not be controverted after the termination of the life-estate of the widow, we need not now inquire. Upon this subject see Watson v. Camper, 119 Ind. 60; Bowen v. Swander, ante, p. 164; Jordan v. Van Epps, 85 N. Y. 427; Cromwell v. Hull, 97 N. Y. 209; Janes v. Brown, 48 Iowa, 568; Shepherd v. Rice, 38 Mich. 556. This question does not concern the parties to this controversy at this time.
The conclusion of law upon the facts found should have been that the plaintiffs below were the owners in fee simple of the undivided three-fourths of the land in question, and that the defendant owned the undivided one-fourth in fee simple.
Judgment reversed, with costs, with instructions to the court below to restate its conclusions of law in consonance with this opinion, and to enter judgment accordingly.