153 Ind. 453 | Ind. | 1899
This action was commenced by Lyle E. Ripley against appellees for partition of the eighty acres of real estate described in the complaint. It was alleged in the complaint that said Ripley was the owner of the undivided one-third of said real estate, and appellees were the owners of the undivided two-thirds thereof. After the action had been pending in the trial court about four years, said Eipley executed a deed for said real estate to appellant, who was, on February 9, 18-97, the next day after he received said
The correctness of the conclusion of law is assailed by the assignment of errors.
The special finding, so far as necessary to the determination of the question presented, is substantially as follows: The land in controversy was conveyed by the United States to the State of Indiana, and by the State of Indiana conveyed to John A. Burbank, in 1855, who, on February 12, 1857, conveyed the same to Andress S. Wiggins by warranty deed, which was recorded on October 9, 1857, in the proper deed record. Andress Wiggins, at some time between 1857 and 1860, conveyed said real estate by warranty deed to Aaron Brown, which deed was never recorded, and said real estate was never placed on the transfer books or tax duplicates in the name of said Aaron Brown, but remained on said records in the name of Andress S. Wiggins until May 22, 1880, Avhen a tax deed was executed to William O. Barnett, which was afterwards duly recorded in' the proper record on July 2, 1880. Said Barnett had purchased said real estate at a regular tax sale held in Pulaski county on February 6, 1863, for the delinquent taxes for the years 1861 and 1862, and on said day a certificate of said sale was issued to him, and said tax deed aforesaid was based upon said sale. Said William C. Barnett died testate on March 17, 1881, and left surviving him as his sole legatee his Avife, Harriett Barnett, and the "will of said Barnett was duly probated in said Pulaski county on March 21, 1881. Afterwards Harriett Barnett brought an action in the Pulaski Circuit Court against Andrew S. Wiggins and Andress S. Wiggins to quiet her title to said real estate, and gave said Wiggins and Wiggins notice thereof by publication. At the September term 1883 of said court, said court found that, said Harriett Barnett had a lien on said real estate for $266,
It is provided in said §2669 (2508) supra, that “In all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her.marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue 'of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute on the death of the husband, whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof, his heirs or assigns, subject to the provisions of this act,- and not otherwise. When such inchoate right shall become vested under the provisions of this act, such wife shall have the right to the immediate possession thereof; and may have partition.”
To entitle the wife to the benefit of said section, the title vested in the purchaser at the judicial sale must be the title of the husband. Elliott v. Cale, 113 Ind. 383, 387-395. It will be observed, however, that Andress S. Wiggins, the husband of Mrs. Wiggins, sold and conveyed the eighty acres of real estate described in the complaint to one Aaron Brown, between 1857 and 1860, and that he was not the owner thereof when the taxes for the payment of which the land uras sold became a lien thereon, nor at the time the same was sold at sheriff sale and conveyed to Mrs. Barnett in 1884. The taxes therefore for which the land was sold were not an indebtedness of said Wiggins but of said Brown,
It was held by this court, in Elliott v. Cale, 113 Ind. 383, pp. 396-398, and in Buser v. Shepard, 107 Ind. 417, where mechanics’ liens and sewer assessments attached prior to the taking effect of said §2669 (2508) supra, that a sale on a decree foreclosing said liens rendered after said sections took effect, vested in the purchaser the entire title to the lands upon which the liens attached, and that no interest or title vested or became absolute in the wife under said act. Mechanics’ liens and the lien of a sewer assessment are given by statute the same as the lien of taxes.
The lien of the taxes for which the real estate in controversy was sold at tax sale to Mrs. Barnett attached before the act of 1875, being §2669 (2508), supra, took effect, and as the title of appellee is derived from a foreclosure of said tax lien, and a puchase by Mrs. Barnett thereunder, it would seem, upon the authority of these eases, that no title in said
Finding no available error in the record, the judgment is affirmed.