Platt v. Dawes

10 Ind. 60 | Ind. | 1858

Hanna, J.

The facts, as shown by the record, are as follows: Elizabeth Dawes, as gurdian of her minor children, heirs of Frank Dawes, deceased, brought suit for use and occupation of a certain shop, against Piatt, and alleges that deceased was the owner and died possessed of the premises described; that said heirs were in possession thereof until Piatt entered as tenant, &c. Piatt admitted the occupation, but denied the right of said Elizabeth to recover the rents, and set up that he held under a lease from one Pomeroy, who was the administrator of the estate of said deceased, and who executed the same under the authority and by order of the proper Court. To this it was replied, that there was no valid lease; that the execution of alease had not been authorized; and denials. Upon the trial, the plaintiff proved that deceased died in possession of the shop; that his heirs had possession thereof until defendant entered; and proved the reasonable value of the rents. The defendant thereupon introduced as evidence certain orders, made by the Court, in the estate of said decedent, as follows:

Of August term, 1852. “ Now comes the administrator and G. H. Reeve, on behalf of himself and other creditors, and it appearing that there are debts that are not 'paid or any part thereof, and some debts that have been paid in full, and that there are no personal assets to pay with, on motion it is ordered by the Court, on due inquiry made, that said administrator proceed to advertise and offer for sale, for one-third cash down, and the balance in three and six months, the rents and profits of the wagon-shop on lot 45 in Plymouth, and the blacksmith-shop over the river in Plymouth,” &e.

And also the following: “ Now comes William G. Pomeroy, the administrator, and files a report of the leasing of a certain shop belonging to said estate, in these words (here insert), and moves for confirmation, and after full inspection had, said report is by the Court approved and confirmed.”

The bill of exceptions then states that the defendant offered to introduce the lease referred to in the above order, to the introduction of which objection was made and the objection sustained. This raises the question to be considered.

It is insisted by the appellant that the orders of the Court above quoted, are not void, and can not therefore be attacked collaterally. This is controverted; and it is also said that the lease ought not to have been given in evidence, if those orders were all the proceedings authorizing the making thereof, and if they were not all the records, that all of the records pertaining to the matter Should have been introduced. We have heretofore decided that a party has a right to prove the several facts in his case in the order which he may prefer. Hadden v. Johnson, 7 Ind. R. 394.—4 Blackf. 174. We cannot presume that if the lease had been admitted in evidence, the defendant would have stopped there, and rested his case upon the records already produced; but we must presume, so far as any presumption arises upon the point, that the proper proceedings had preceded the order confirming the report of leasing: and therefore it was error to refuse the evidence offered.

H. C. Newcomb and J. S. Harvey, for the appellant. J W. Chapman and J. B. Merriwether, for the appellee.

As the question will again arise upon the trial below, we might add that the statute of 1843, which authorized an administrator to lease real property for the payment of debts, gave such power in instances where adversary proceedings were had, at least to the extent of making those interested in such lands parties, giving them notice, &c. If no such proceedings were had in this case, the leasing \yas of no validity.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.