59 Ind. 39 | Ind. | 1877
— This is the second time this cause has been before this court. When it was here before, the only-question arising in the record was the sufficiency of the appellants’ complaint; and it was then held by this court, that the complaint was good. Nicholson v. Caress, 45 Ind. 479.
We approve of, and adhere to, the decision then rendered. The action was brought by the appellants, against the appellee and others, to obtain partition of certain real estate in Washington county. The principal question considered by this court, when the case was here before, was the construction which ought to be given to a certain deed, set out in appellants’ complaint. This deed bore date on the 24th day of March, 1847. It was executed by Thomas Nicholson, who was then the owner and in the possession of the real estate of which partition was sought for in this action. By this deed, the said Thomas Nicholson conveyed said real estate to his sons Peter and Thomas B. A Nicholson, upon the condition of his maintenance through life, and his burial after death. The habendum of the deed was as follows: “ To have and to hold the same against all claim or claims whatever and singular, the title, interest and claim in and unto the said Peter and Thomas B. A. Nicholson, forever.”-
As construed by this court, by this deed, only an estate for life was conveyed to said Peter and Thomas B. A. Nicholson, in said real estate. After the execution of
"When the cause was remanded, all the defendants named in the complaint, except the appellee, filed a disclaimer. The appellee answered in nine paragraphs, and filed his cross-complaint in three paragraphs. The appellants demurred separately to each of the paragraphs, except the first, of appellee’s answer, for the alleged' insufficiency of the facts therein to constitute a defence to their action; which demurrers were sustained as to the second, third, fourth and eighth paragraphs, but were severally overruled as to the fifth, sixth, seventh and ninth paragraphs of said answer, to which decisions of the court below, in overruling said demurrers, the appellants ex
The appellants replied by a general denial to each of the fifth, sixth, seventh and ninth paragraphs of appellee’s answer; and, for a further reply to said ninth paragraph, the appellants alleged that the cause of action therein stated,, as a bar to their suit, did not accrue within twenty .years next before the bringing of this suit. And the appellants answered the second and third paragraphs of the appellee’s cross-complaint in two paragraphs, as follows: 1. A general denial; and, 2. That the cause of action therein stated did not accrue within twenty years next before the bringing of the suit. •
The cause was tried by the court below, without a jury, and a finding made in favor of the appellee on all the issues joined, except on the ninth paragraph of the answer. And, on written causes filed, the appellants moved the court below for a new trial, which motion was overruled, and appellants excepted, and judgment was rendered for the appellee.
In this court, the appellants have assigned, as alleged errors, the several decisions of the court below, in overruling their demurrers to the said several paragraphs of appellee’s answer and cross-complaint, and also their motion for a new trial.
We will first consider the alleged errors of the court below, in overruling appellants’ demurrers ; and, in so doing, we will take up and dispose of the several paragraphs demurred to, in their enumerated order.
The appellee alleged, in substance, in the fifth paragraph of his answer, that the cause of action, mentioned
This action was commenced, in the court below, on the 27th day of February, 1873. The appellants claim in this case as the heirs at law of Thomas Nicholson, who died on the 11th day of January, 1848. At the death of said Thomas Nicholson, however, his two sons Peter and Thomas B. A. Nicholson were each the owner of an undivided moiety, under the aforementioned deed, of the said real estate, for his own life. And, of course, the appellants had no possessory right to any interest in said real estate until the death of said Peter Nicholson, which occurred, as before stated, in the year 1855. Under these facts, all of which appeared on the face of appellants’ complaint, and none of which were controverted in or by the fifth paragraph of appellee’s answer, the question is presented: "When did the cause of action, stated in appellants’ complaint, really accrue? did it accrue, upon the death of their ancestor, Thomas Nicholson, in 1848 ? or can it he said, that their cause of action did not accrue until, by the death of Peter Nicholson in 1855, they acquired a possessory right to an interest in said real estate ?
In the case of Jenkins v. Dalton, 27 Ind. 78, which was a suit for partition, in which the same limitation was pleaded in the same form as in this action, it was held by this court, that the statute of limitations was not applicable to a petition for partition of lands, claimed, as in this case, to be held by tenants in common. In delivering the opinion of the court in the case cited, Elliott, J., said: “In such a case, the right to the partition exists from the date of the tenancy. It may or may not be exercised, in the discretion of the tenants. All the tenants have an equal right to possession, and may all be satisfied to enjoy the estate in common. Partition may not be desired by anyone or more of the tenants for a period of time greater than that prescribed by any statute of limitation; and the fact that such a period is suffered to elapse, does not in
In the case now before us, we incline to the opinion, that the appellants’ cause of action for partition can not be said to have accrued, until, by the death of Peter Nicholson, they acquired a possessory right to an interest in the real estate described in their complaint. And we are very certain, that the facts stated in the fifth paragraph of appellee’s answer were not sufficient to constitute a defence to the appellants’ complaint. The appellants alleged in their complaint, that they were tenants in common with the appellee of the real estate in controversy. If they were such tenants in common, and the appellee did not deny such tenancy in the fifth paragraph of his answer, then the statute of limitations would not, in any manner, affect the right of the appellants to have partition. The possession of one of several tenants in common is not of necessity an adverse possession to the other tenants ; and, the tenancy in common not being denied, the paragraph of the answer, setting up the statute of limitations, was clearly insufficient. We hold, therefore, that the court below erred, in overruling the appellants’ demurrer to the fifth paragraph of appellee’s answer.
In the sixth paragraph of his answer, the appellee alleged, in substance, that he and his grantors, under whom he claimed title, had for twenty years past, before the commencement of this action, held exclusive, undisturbed and undisputed possession of the real estate mentioned in appellants’ complaint, adversely, openly, notoriously and continuously, under claim and color of title, against all other claims or title whatsoever. It will be seen from the averments of appellants’ complaint, that the appellee or his grantors were lawfully entitled to the exclusive, undisturbed and undisputed possession of the whole of said real estate, until the death of said Peter Nicholson, in 1855. But, until such death, the possession of the appellee or of his grantors, however open, notorious and continu
The appellee alleged, in substance, in the seventh paragraph of his answer, that he was sole and exclusive owner of all the real estate described in appellants’ complaint; that on the 24th day of March, 1847, one Thomas Nicholson, the appellants’ ancestor, from and under whom appellants claimed title, sold said real estate to his two sons, Peter and Thomas B. A. Nicholson, by parol, upon the consideration that they should maintain and support sard Thomas Nicholson during his life, and bury him decently after his death; that said Thomas Nicholson,in pursuance of said contract, put said Peter and Thomas B. A. Nicholson in possession of all said real estate, and they, with the knowledge and consent of said Thomas Nicholson, took sole and exclusive possession of said real estate, and held and remained in full and exclusive possession thereof, with his knowledge and consent, until his death, on the — day of
In the second paragraph of his cross-complaint, in this action, the appellee alleged substantially the same facts that were stated in the seventh paragraph of his answer; but, in the second paragraph of his cross-complaint, the appellee prayed for specific performance, and that a commissioner might be appointed by the court below to convey to him all the interests of the appellants in said real estate.
The alleged facts set out in the seventh paragraph of appellee’s answer, it seems to us, were clearly insufficient to constitute any defence or bar to the appellants action. The matters stated in this seventh paragraph of answer, as we construe them, were in no wise inconsistent with the appellants’ alleged cause of action, as set forth in their complaint. "Very singularly, we think, the appellee did not aver or charge, either in the seventh paragraph of his answer or in the second paragraph of his cross-complaint, that the said Thomas Nicholson had contracted to convey the real estate in controversy to his two sons, Peter and Thomas B. A. Nicholson, in fee simple, or to them and their heirs and assigns forever; but the alleged contract, as stated in each of said paragraphs, like the deed set out in appellants’ complaint, contained no words of inheritance, nor any words which necessarily imported, under the law then in force, that the said Thomas Nicholson was to convey said real estate to his said two sons, in fee simple, or any larger estate therein than the life estate which, by his said deed; he did convey. At the date of the alleged contract between the said Thomas Nicholson and his said two sons, and indeed until the 6th day of May, 1858, the common-law doctrine prevailed in this State, that, in any deed or contract for the conveyance of real estate, words of inheritance were necessary in order to show that an estate of inheritance was intended to be created. It seems to us that the deed
In the ninth paragraph of his answer, the appellee alleged, in substance, that the ancestor of the appellants, Thomas Nicholson, in his lifetime, advanced in personal and real estate to all of his. heirs, excepting said Peter and Thomas B. A. Nicholson, the full share and interest that would have been due to each of his said heirs at his, said Thomas Nicholson’s, death, and that said personal and real estate, so advanced to said heirs, was received and accepted by them in full of all interest in the estate of said Thomas Nicholson, deceased. And this paragraph contained substantially the same averments as did the seventh paragraph, for the purpose of showing that the appellee owned and held the same interest in said real estate as the said Peter and Thomas B. A. Nicholson had formerly held therein. If this action had been commenced against said Peter and Thomas B. A.'Nicholson, while they claimed to own and hold the real estate in contro-. versy, it is very certain, that they might have availed themselves of the advancements, alleged in this paragraph of the answer, if such advancements had, in fact, been made, as a complete defence to the action. Their shares of their deceased father’s estate, under the averments of this paragraph of the answer, embraced and included-the entire real estate in controversy in this action.’ If those averments were true, and the appellants’ .demurrer concedes their truth, all the said real estate descended, at the
In the. third- paragraph of his cross-complaint, the appellee- alleged; in- substance, that ,said Thomas Nicholson sold, and. attempted, and intended to convey in fee, unto Peter and:Thomas B. A. Nicholson, his-sons, by-the deed set: out in appellants’ complaint, the real estate in contro versy in this action ; that, on the.-24th dayof.Mareh, 1847, the said Thomas Nicholson.executed said, deed,- by which itiwas intended by him to conyey said' real estate in fee simple to: said Peter and; Thom as B. A. Nicholson, and it was their, intention to take and receive, by said deed, a title in fee simple-tp said real estate; but.that, by mutual mistake of said .parties,- and by . error and inadvertence of the-writer-of: said deed, the word “-heirs”- was omitted from- said; deed-; = that-- it was.-the' -intention of- the parties to said deed to insert in the habendum thereof the word
It-seems' to us,-that the appellee’s only, defence to this action, if he has any, lies in the reformation of the deed set out in appellants’ complaint, provided always, that
• The only remaining error assigned by the appellants on the record of this cause is the decision of the court below in overruling their motion for a new trial. The causes assigned for such new trial were as follows:
1. The decision of the court was not sustained by sufficient evidence; and,
2. The decision of the court was contrary to law.
The views which we have expressed in relation to the pleadings in this 'cause will lead, of necessity, to a material change of the issues in the court below. Therefore it is unnecessary, and perhaps would be improper, for us to enter now into a detailed or critical examination of the evidence in the record. We may say generally, however, without impropriety, that, in our opinion, the evidence adduced upon the trial did not sustain the finding of the court below on the material issues in this cause.
The judgment of the court below is reversed, at the costs of the appellee, and'the cause is remanded, with instructions to the court to sustain the appellants’ demurrers to the fifth, sixth and seventh paragraphs of appellee’s answer, and to the second and third paragraphs of his cross-complaint,' and for further proceedings.
Petition for a rehearing overruled.