73 Ind. App. 663 | Ind. Ct. App. | 1919
This action was instituted by appellees Minta R. Hinkle and Albert A. Newer, guardian of Lela Irwin and Marie Irwin, against appellants to partition certain real estate. The complaint is in the usual form for such a proceeding, alleging that appellant James R. Plank is the owner of an undivided three-fifths of said real estate; that appellee Minta R. Hinkle is the owner of an undivided one-fifth thereof; and that Lela Irwin and Marie Irwin are each the owner of an undivided one-tenth thereof. Appellant James R. Plank filed a cross-complaint in two paragraphs against appellees and his coappellant, alleging that he is the sole owner of the real estate described in the complaint, and asking that his title thereto be quieted. Issues were duly joined on both the complaint and cross-complaint. The cause was tried without the intervention of a jury, and on request the court made a special finding of facts and stated its conclusions of law thereon. From the special finding of facts it appears that William Plank, father of ap
“Comes now the said plaintiff, Jemima Plank, and moves the court to set aside the report of the commissioners herein and also to set aside the interlocutory decree of the court, and also the order of the court submitting this cause for trial, for the following grounds: (1) There is no issue in said cause as to said insane defendants. (2) There is no answer filed by a committee or by a guardian ad litera for said insane defendants. (3) The record of said cause does not show said insane defendants were served with process or summons herein. (4) The report of the commissioners to make partition does not fairly state the title of this plaintiff in and to the real estate described in the complaint.”
That the court on the day said motion was filed sustained the same, and set aside the submission, interlocutory decree and report of commissioners, and on the same day found that due and proper service of summons had theretofore been made on both of said defendants Ella Irwin and Frances I. Hinkle; that, it having been suggested that said defendants were of unsound mind,
“That said Jemima Plank is the owner in fee simple of an undivided one-third interest thereof in value. * * * It is therefore considered, adjudged and decreed by the court that partition be made of the following described real estate, to wit: (describing the 120 acres) among the parties according to their respective interests as heretofore found, by setting off to said plaintiff, Jemima Plank, the undivided one-third thereof in value.”
That the court thereupon appointed the same commissioners to make the partition thus decreed, who filed their report on the following day, being November 11, 1909; that said report is identical with the first report made by said commissioners, except that it omits the clause, “subject to forced inheritance as provided by law,” in connection with the assignment made by them to said Jemima Plank; the paragraph of the report in that regard being as follows: “We have set off to Jemima Plank in severalty, in fee simple, as and for one-third in value thereof, the following described portion of said real estate, to wit: (Here follows description of land in question), the same to be in lieu of her interest in the real estate described in said warrant”; that said last report of said commissioners was duly approved and confirmed, and the court adjudged thereon that the partition thereby made be firm and effectual, and that Jemima Plank hold and occupy the real estate so set off to her in severalty; that the court appointed
On the special finding of facts the court stated the following conclusions of law: (1) That by virtue of the finding and decree rendered by the Carroll Circuit Court in the case of Jemima Plank et al. v. Ella Irwin, et al., at the October term, 1909, Jemima Plank took an estate in fee simple as the childless second .wife of William Plank of the real estate described in the complaint herein and set forth in the sixth finding above. (2) That said real estate did not pass by virtue of the will of Jemima Plank, but at the death of said Jemima Plank said real estate descended to James Reed Plank, Minta R. Hinkle, Lela Irwin- and Marie Irwin in fee simple and as tenants in common thereof; that the said James Reed Plank owns the undivided three-fifths thereof; that Minta- R. Hinkle is the owner of the undivided one-fifth thereof and Lela Irwin and Marie Irwin each own the undivided one-tenth thereof and the plaintiffs herein are entitled to partition of the real estate and their interest set off to them in severalty. (3) That cross-complainant and defendant, James Reed Plank, has no interest in said property, except as above set out. (4) That the defendant, James Reed Plank, executor of the last will and testament of Jemima Plank
Based upon what we have said, we conclude that the court did not err in stating its conclusion of law. The decree is in harmony with the conclusions of law, and hence the court did not err in overruling appellant’s motion for judgment in his favor as alleged, or in rendering judgment in favor of appellees. Appellant has failed to point out any reason which would warrant a conclusion that the court erred in overruling his motion for a new trial. We find no error in the record. Judgment affirmed.