127 Ind. 497 | Ind. | 1891
The appellees, in their complaint, assert title in fee simple to the land in dispute, and specifically set
It may be said, as well at the outset as elsewhere, that, upon the sale under the order in bankruptcy, the title of the ancestor of the appellees became vested. Elliott v. Gale, 113 Ind. 383 (393), and cases cited; Ketchum v. Schicketanz, 73 Ind. 137. The wife of the bankrupt, therefore, became the owner of an absolute estate in the land in the year 1878.
The counter-claim of the appellant alleges facts which, it is probable, would constitute an estoppel against one not under legal disability, but which can not be deemed to create an estoppel against a married woman under the law in force when the acts asserted as an estoppel were performed. It has been so often decided that a married woman could not lose title by estoppel in the lands of her husband, under the former laws, that it is almost unnecessary to cite authorities. Wilhite v. Hamrick, 92 Ind. 594; City of Indianapolis v. Patterson, 112 Ind. 344. There was no error in sustaining appellees’ demurrer to the appellant’s counter-claim.
A motion for a new trial, as of right, was filed by the appellant and denied by the court. Upon this ruling is presented the only question of difficulty that arises in the case. It is well settled that the title to real estate is not ordinarily in issue in proceedings for partition. Davis v. Lennen, 125 Ind. 185, and cases cited. Whatever else may be said of the soundness of many of these decisions, it must be said that it is our duty to adhere to them, as the rule they declare has become a rule of property. But, while the rule stated is a settled one, it is equally well settled that title may be put in issue in partition proceedings. Isbell v. Stewart, 125 Ind. 112; McMahan v. Newcomer, 82 Ind. 565 and cases cited; Luntz v. Greve, 102 Ind. 173; Thorp v. Hanes, 107 Ind.
We have not found it necessary to examine the point made by the appellee that there is no bill of exceptions. Under the decisions in Physio-Medical College v. Wilkinson,