75 Ind. App. 601 | Ind. Ct. App. | 1921
Lead Opinion
Action by appellee against appellant to quiet title to certain real estate. It appears from the special finding of facts that in March, 1899, John Lowe, Sr., being the owner of a certain forty-acre tract of land entered into a contract with Marshall Lowe to the effect that the latter should have said land upon con
•On these facts the court stated its conclusions of law in favor of appellee, and entered a decree quieting her title.
The facts in that case are that Joseph Sampson died testate, the owner of certain land. He devised his land to his widow, whether for life or in fee was not determined and is immaterial. After the widow’s death her administrator filed a petition to sell the whole of the real estate for the purpose of paying the debts of her estate. The three children of the widow and Joseph were made defendants. It was alleged in the petition that the widow owned the real estate in fee, and that it was necessary to sell it to pay the debts of her estate. There was a decree ordering the land sold.. Appellee Hufty became the purchaser at the administrator’s sale. After paying all the debts there was a balance of over «$600 for distribution among the three children, which they received and still retained. Hufty later commenced an action against said children to quiet his title. They defended, and contended that under the will of their father, their mother took only a life estate or at least an estate less than a fee-simple, and that the administrator’s deed conveyed no title. The court however held that the children were concluded by the j udgment ordering the land sold, and that they could not later assert that she did not own a fee at the time of her death or that it was not liable to be sold to pay her debts.
The rule as announced in this case was recognized and applied in Whitesell v. Strickler (1906), 167 Ind. 602, 78 N. E. 845, 119 Am. St. 524, where the court, quoting from the Jones case said: “The party who-invokes the doctrine of former adjudication must be one who tendered to the other an issue to which the latter could have demurred or pleaded,” and in Maynard v. Waidlick (1901), 156 Ind. 562, 60 N. E. 348, where the court said: “As her husband had no cross-complaint or other pleading asking to quiet his title to said real estate against her, this part of the decree was without issue, and for that reason was not binding on her.” And also in Finley v. Cathcart (1897), 149 Ind. 470, 63 Am. St. 292, where it was said: “Unless it can be said that
There was no suit pending between appellee and her children. Any judgment, therefore, that the court may have pronounced in the action of the administrator, which purported to settle any title or claim between appellee and her children, was coram non judice, and void.
The same rule is recognized and applied in Koelsch v. Mixer (1894), 52 Ohio St. 207, 39 N. E. 417, where it is said : “It is not enough that an issue may have been joined between the obligee and the defendant, as to the liability of the latter on the bond. Whatever that issue may have been, it is not an issue between himself and his co-defendants, the plaintiff in this action, and could not therefore conclude the latter; though parties to the suit they were not such in an adversary character, being simply co-defendants to the suit on the bond. * * * It is the general rule that parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they are adversary parties in the original action.”
“The only parties concluded by a decree are adversary parties, and the matter determined must be in issue between them. Parties on the same side of a foreclosure suit are not concluded, as against each other, if no issue between them was presented and adjudicated. Where nothing has been litigated as between co.defendants in a chancery suit, the decree is not evidence in favor of either party against the other.” Gouwens v. Gouwens (1906), 222 Ill. 223, 78 N. E. 597, 113 Am. St. 395. To the same effect is Duncan v. Holcomb (1866), 26 Ind. 378, where 'it is said: “Codefendants may or may not
The particular controversy involved in the instant case was not necessarily tried and determined in the proceedings to sell. The order to sell could have been made without deciding the extent of appellee’s title, if any, in the land sold. The judgment ordering part of the land sold is not therefore conclusive in the case under consideration. Washington, etc., Co. v. Sickles (1866), 72 U. S. 580, 18 L. Ed. 550; Burnie v. Seaton (1887), 111 Ind. 56, 12 N. E. 101; Felton v. Smith (1882), 88 Ind. 149, 45 Am. Rep. 454.
Our attention has been called to the case of Young v. Stevens (1902), 28 Ind. App. 654, 63 N. E. 721, as being an authority supporting the contention of appellee. We do not so understand that case. The facts in that case were, that one Barefoot had sued Stevens, Roth, and Young upon- a note and to set aside as fraudulent a mortgage which Stevens had executed to Kerlin. Roth and Young defaulted. Kerlin filed a cross-complaint against Stevens and Barefoot asking that his mortgage be foreclosed. There was a judgment in favor of Barefoot against Stevens, Roth, and Young on the note,' while Kerlin secured a judgment and decree in his favor foreclosing his mortgage against Stevens and Barefoot. Roth and Young, being sureties for Stevens, paid the Barefoot judgment, not the note, and then began an action against Stevens and Kerlin to recover the amount which they had so paid and to set aside the Kerlin mortgage as being fraudulent as to them as creditors of Stevens. The court held that, since Young and Roth
We, therefore, hold that appellee was the owner of an undivided two-thirds of the real estate described in her. complaint but that she has no title to the undivided one-sixth which has been sold to appellant by the sheriff pursuant to the judgment of the court in the attachment proceedings. The judgment is therefore reversed, with direction to the court to restate its conclusions of law and to render a decree consistent with this opinion.
Dissenting Opinion
DISSENTING OPINION.
I do not concur in the majority opinion. It will be observed that' in the administrator’s petition for sale, it was averred that his decedent was the owner of all the real estate involved at the time of his death. This was a necessary averment under the statute. Without such an averment and a finding of the court to that effect, there would have been no valid order for the sale of the undivided two-thirds thereof; for, as there was a widow, under the statute she owned the undivided one-third of the real estate of which her husband died seized, and this was not subj ect to sale to pay debts. Hutchinson v. Lemcke (1886), 107 Ind. 121, 8 N. E. 71.
. So far as title is concerned, in order to contest the administrator’s right to sell the two-thirds, the defendants James M. and Frieda Lowe, must of necessity, contest their father’s title to the whole tract at the time of his death, and this involved a contest of the mother’s right to the one-third as widow. Under the general denial which was pleaded in their behalf they could have put in evidence the deed from the grandfather, and any other matter that would have shown their title other than as heirs,, and that would have defeated the title of
Had the heirs aforesaid prevailed in their contest, they would have established not only their title to the undivided two-thirds as against the administrator, but also their title to the undivided one-third here involved. Having failed to so contest, or failing in their contest, they are now precluded. The case of Armstrong v. Hufty (1899), 156 Ind. 606, 55 N. E. 443, 60 N. E. 1080, mentioned and discussed in the majority opinion, reading on pp. 613, 614, discusses the general principle as to res ad judicata. We may here remark that what-is said with reference to such heirs being precluded from maintaining any subsequent action, was said independent of any fact with reference to their having received in final settlement any distributive share of their mother’s estate.
It has been many times held that a judgment is an adjudication upon all the matters of law and fact which are essential to support it. St. Joseph Union Depot Co. v. Chicago, etc., Co. (1898), 89 Fed. 648, 32 C. C. A. 284; Perry v. King (1898), 114 Ala. 533, 23 South. 783;
The majority opinion cites the case of Leaman v. Sample (1883), 91 Ind. 236, on the principle that where one of the defendants made an issue with the plaintiff, the judgment settling the issue so made in favor of such defendant does not determine the question between the codefendants. In that case one of two sureties presented the question of his suretyship asking certain relief, while the other surety did not file such an answer or ask such relief. There was an adjudication in favor of the first surety and granting him the relief, while no relief was granted to the second surety. Suppose that both sureties had filed respective answers praying for the same kind of relief, and that the court by the special finding had found that they were both sureties and had granted the relief for.which they prayed; Could they have thereafter been heard to litigate the question of the suretyship as between themselves? In the case at bar, the widow and'the children were before the court
The case of Whitesell v. Strickler (1906), 167 Ind. 602, 78 N. E. 845, 119 Am. St. 524, was an action by the widow, against the administrator of her husband’s estate and her children, to set aside her election to take under the law on the ground of fraud. There was a plea of res adjudicate/,, the basis of which was an action by the administrator to sell the undivided two-thirds of the husband’s real estate, in which it was alleged that the widow had elected to take under the law, which she admitted. In that proceeding, however, she did not present the question of fraud, and it was held that the plea of res adjudioata could not prevail for the reason that the parties were not the same and the subject-matter of the action was entirely different. The case is clearly distinguished from the instant case, as I think each and every one of the cases cited by the majority opinion may be, by showing that the circumstances of each of the eases were different from those here involved. In this case there could have been no valid order of sale of the undivided two-thirds of the real estate involved without a finding following the averment that the whole tract belonged to the decedent, which is equivalent to a decision that the widow owned the undivided one-third. The order of sale here involved of necessity involves the title