63 Ind. 93 | Ind. | 1878
This was an action by the appellants, as plaintiffs, against the appellees, as defendants, for the partition of certain real estate, in Tippecanoe county, Indiana, particularly described in the appellants’ complaint.
It was alleged in said complaint, in substance, that, on the 19th day of March, 1875, at said county, one Peter Randles died intestate, the owner in fee-simple of said real estate at the time of his death; that the appellants and the appellee Eldon G. Randles were the children and heirs at law of said Peter Randles, deceased, and as such were each the owner, in fee-simple, of an undivided one-twelfth part of said real estate ; that the appellee Mahala Randles was the wife, by a second marriage, and widow of said Peter Randles, deceased, and the said Eldon G. Randles was the only child of said Peter Randles, deceased, by said Mahala Randles that, during the year 1874, the said Peter Randles was the owner of said real estate, and of some personal property, all of an aggregate value at that time not exceeding twenty-one thousand dollars; that, in the year 1874,
1. A general denial, except the allegations of her intermarriage with the decedent, Peter Randles, his seizure in fee-simple of the real estate described in the complaint, during their coverture, the death of said Peter Randles, and that her co-appellee, Eldon G-. Randles, was the only living issue of their said marriage ; and,
2. That she was intermarried with the decedent, Peter Randles, in 1859 ; that, in three or four years after their marriage, the decedent, without any fault of said appellee, became dissatisfied with her, and manifested a dislike of her, and gave her many just causes of complaint of his conduct towards her, the particulars of which she did not wish to state further than to protect herself in her just rights as against the claim of the appellants,in this action; that, for the period of-years before the death of her said husband, she, said appellee, was in ill health, a confirmed invalid, unable to 'work, and for much of the time confined to her bed; that the decedent desired the appellee to leave his house, and often stated so to her, and that, on account of his wrong 'conduct, it was necessary for her health and peace of mind to leave his house and family ; that she had no ready money upon which to maintain herself, although she alleged that she was the owner, in her own right, of a large amount of real estate, in said Tippecanoe county, of the value of twelve thousand dollars; that, to gratify the desire and command of the decedent, Peter Randles, and to obtain ready money with which to suitably provide for herself, the said appellee, on the 17th day of November, 1874, caused to be conveyed to him-, the said decedent, her said real estate, by joining in a deed therefor to one James Rice, who immediately reconveyed the same to her said husband, Peter Randles, deceased; that no consideration was paid by or to said James Rice, but that he-acted as a mere
To this second paragraph of answer the appellants demurred, upon the ground that it did not state facts sufficient to constitute a defence to their action, which demurrer was overruled by the court, and to this ruling the appellants excepted.
The appellants moved the court, in writing, to strike out a certain part of the second paragraph of the separate answer of the appellee Mahala Randles, which motion was overruled, and to this decision the appellants excepted.
The appellants replied, by a general denial, to the second paragraph of said separate answer of said Mahala Randles.
The issues joined were tried by the court, without a jury, at the November term, 1875, and taken under advisement. At the February term, 1876, the court, being fully advised,
Afterward, at the same term, the appellants moved the court, in writing, to modify its said judgment of partition, which motion was overruled, and to this ruling they excepted. Thereupon the court appointed commissioners to make such partition, and report the same to the court, at that term.
Afterward, at the same term, the appellants moved the court to dismiss this action at their costs, to which the appellee Mahala'Randles objected; and eight days afterward, at the same term, the appellants filed a written dismissal of their action, to which dismissal the appellee objected for the reason that it came too late, and the court took the matter under advisement.
Afterward, at the April term, 1876, the coui’t, being sufficiently advised, overruled the motion to dismiss the action, to which ruling the appellants excepted. At the same term, the commissioners theretofore appointed made and acknowledged in.open court their report of partition, to which report the appellants filed written exceptions.
Thereupon the appellants moved the court in writing to set aside the proceedings in this action and grant them a new trial, which motion was overruled, and they excepted to this decision and appealed to this court.
The appellants have assigned in this court the following decisions of the circuit court, as alleged errors:
1. In overruling their demurrer to the second paragraph of the answer of the appellee Mahala Bandies;
2. In overruling their motion to strike out a certain part of said second paragraph of said answer;
3. In overruling their motion to dismiss the cause;
4. In overruling their motion to strike out a certain part of the judgment of partition;
5. In overruling their motion to strike from the files the affidavit of P. C. Vawter;
6. In overruling their objections to the commissioners’ report of partition;
7. In overruling their objections, as set out in bill of exceptions No. 5 ; and,
8. In overruling their motion for a new trial.
¥e will consider and decide such questions arising under these alleged errors, as the appellants’ counsel have presented and discussed in their brief of this cause, in the same order in which they have presented them.
The court did not err, we think, in overruling the appellants’ demurrer to the second paragraph of the answer of the appellee Mahala Randles. This paragraph, though called an answer, was m the nature of a cross petition or cross complaint, in which the appellee alleged her interest, as widow, in the real estate of her deceased husband,, and prayed that such interest might be set off to her. For-
2. The appellants complain of the action of the court in overruling their motion to strike out the first twenty-seven lines of the second paragraph of said appellee’s answer. These twenty-seven lines contain the appellee’s version of the alleged post-nuptial agreement. The matter stated in those lines was not very material, but it was as good, perhaps, as the post-nuptial agreement. At most, it wras mere surplusage; and as a rule this court will not reverse a judgment for an error committed in overruling a motion to strike out surplusage or immaterial matter. Mires v. Alley, 51 Ind. 507, and House v. McKinney, 54 Ind. 240.
3. It is earnestly insisted, that the finding of the court in favor of the appellee Mahala Randles was not sustained by the evidence. In other words, it is claimed that the •evidence clearly showed that there was a post-nuptial agreement, as alleged in the complaint, between said appellee and her deceased husband, Peter Randles, which barred her right or claim to any interest m his lands. There was not a particle of evidence introduced on the trial tending ■even remotely to show that any such agreement had ever been made or evidenced by any deed or written instrument ■executed by or between the said parties. There was no proof whatever, therefore, of any post-nuptial agreement which was a valid and legal bar to the appellee’s right and •claim to her interest, as widow, in the lands of her •deceased husband. The finding of the court was clearly right, we think, on the evidence.
4. The appellants claim that the court erred in overruling their motion to dismiss the suit. It will be seen, from our statement of this case, as’ shown by the record, that the appellants’ motion to dismiss was made, and their written dismissal was filed, several days after the finding
5. Itis urged by the appellants’ counsel, with zeal and ability, that the court erred in overruling the objections and exceptions of the appellants to the commissioners’ report of partition. The chief objection insisted upon to this report was the apparent variance in the description of some of the real estate, of -which partition was sought for, in the commissioners’ report, from the description given in the pleadings, in the interlocutory order for partition, and in the warrant issued thereon to the commissioners. In the appellants’ complaint, the lands to be divided were described generally as the lands of which Peter Randles, was the owner, in fee-simple, at the time of his death. Besides this general description, a particular description was attempted to be given of each of the several parcels of said real estate, for which partition was sought. These descriptions, both general and special, were adopted and followed in the interlocutory order for partition,” and, of course, in the warrant issued thereon to the commissioners to make such partition. These commissioners, one
When the court overruled the objections and exceptions of the appellants to the report of the commissioners, it was ordered by the court that the interlocutory judgment of partition, and the warrant issued thereon to the commissioners, should be amended nunc pro tunc, so that the descriptions of the real estate therein should conform to the correct description thereof in the report of the commissioners.
There was no error, we think, in this order of the court. The parties interested were all before the court, and surely the court had the power, in its discretion, during the pendency of the action, to correct any mere mistake in description in its prior judgment and warrant. This order
In our opinion, the court had the power, and, perhaps, should have exercised it in this case, to direct the parties to so amend their pleadings, as that the same should contain full, true and correct descriptions' of the several tracts of land of which the said Peter Randles was the owner, in fee-simple, at the time of his death, and of which partition is sought for in this action. As the pleadings of the parties might have been thus amended in the court below, they will be taken and deemed by this court to have been thus amended.
6. One of the grounds of objection and exception by the appellants to the report of the commissioners was the alleged inequality of the partition, in this, that the share of the real estate, assigned to the appellee Mahala Randles, was much more than the one-third part in value of the whole real estate of which said Peter Randles, was seized at the time of his death. This ground was supported by the affidavit of two of the appellants, who had a. direct interest in the partition; while the report is the act of three disinterested persons, not of kin to any of the parties, made under the sanction of their oaths. Under such circumstances, we can not say that the court erred, in overruling this ground of objection, and in sustaining the report.
We have nowr fully considered and passed upon all the questions presented by the appellants’ counsel in their brief of this cause, and our conclusion is, that there is no error in the
The judgment is therefore affirmed, at the appellants’ •costs.