46 Ind. 468 | Ind. | 1874
This was a petition by Abigail Kerr, by her guardian, John S. Moore, and by William Hobson, plaintiffs, against Philip Moore, for the partition of certain real estate, of which it is alleged the parties are tenants in common in the proportions following: said Abigail one-third, said William Hobson two-sevenths of two-thirds, and said. Philip Moore five-sevenths of two-thirds, filed September 13th, 1872. Moore, the appellant, filed an answer and cross-complaint, alleging that the plaintiffs ought not to maintain their action, because heretofore, to wit, in the year 1864, the plaintiffs and defendant, being the owners of said land and being all of full age and competent to contract, entered into.
The plaintiffs demurred to this paragraph of the answer -on the ground that it did not state facts sufficient, etc., and the demurrer was sustained. Upon an additional answer partition was decreed, and an amount allowed to the defendant, in land, for the improvements which he had made.
The ruling of the court in sustaining the demurrer to the -first named paragraph of the answer is the error assigned.
Counsel for appellees contend that we should infer from, the answer, it not being stated that Abigail Kerr was an insane-person, that she was an infant when this action was brought, and consequently must have been an infant when the alleged partition was made. We can not indulge this presumption,.
It is also urged that the answer is bad, for the reason that it does not allege an offer on the part of the defendant to make a deed to the plaintiffs, nor a demand upon them for a deed. If we are right in holding thatthe partition was valid under the circumstances disclosed, it was not necessary that the defendant should have demanded a deed. He could defend upon the partition without a deed. He asks and may be entitled to a deed as a means of quieting his title. If the court shall decree a deed to him, it may at the same time decree a deed from him to the plaintiffs.
Again, it is contended that the answer is pleaded in bar of the action, and that it is no bar; that it amounts to no more than saying “true partition ought to be made, and I want partition, but I want a different one from that asked in the complaint.” It'seems to us that if the answer shows a valid partition of the land already made, by which the parties are all bound, it is a bar to the action. When there has been one valid partition of land, that maybe pleaded in bar of another partition.
The judgment is reversed, with costs, and the cause remanded, with instructions to overrule the demurrer to the answer or cross complaint, and for further proceedings;