53 Ind. App. 100 | Ind. Ct. App. | 1913
— This is an action by appellees for the partition of certain real estate in a part of which appellant, by way of cross-complaint, seeks to have a trust declared.
The facts which underlie and made possible the litigation are in substance as follows: On August 9, 1868, Elijah H. Dilley and Mary Ann Neal were united in marriage. The wife, Mary Ann Dilley, was the owner of a farm which she and her husband, afterwards, about 1872 or 1873 disposed of for the sum of $3,675. The husband, about this time bought another farm, which is a part of the land sought to be partitioned. The wife, Mary Ann Dilley, died in the year 1878, leaving as her heirs, her said husband and two children, to wit: Tressa B. Dilley and Nora Dilley. Nora Dilley died before her father, leaving as her heir, the cross-complainant, Ray Scott. Elijah Dilley married a second time and died in the year 1907, leaving as his only heirs, his widow, Rose Dilley, and two children by her, Harry D. Dilley and Elijah H. Dilley, and said child and grandchild by the first wife.
The first paragraph proceeds on the theory that the grandmother sold her farm and furnished her husband the money to purchase the land in question under an agreement with him that he was to take and hold the land in trust for her, that such agreement was free from any fraudulent intent, etc. The second paragraph is the same as the first except it avers that the grandfather traded his wife’s farm for the land in question under the agreement set out in the first paragraph. The third is the same as the second in that it avers the trade of the two farms, but differs from the first in that it aVers that the grandmother entrusted her husband to make the trade and that he, in violation of the trust reposed in him, took the land in question in his own name, her farm representing the entire consideration paid therefor, etc. The fourth is the same as the third except it avers a sale of the grandmother’s land by her husband, that she entrusted him with the money to buy another farm and that he bought therewith the land in question and in violation of his trust took the title in his own name, etc. A demurrer to each paragraph of' cross-complaint was overruled, but no question is raised to the sufficiency of any of said paragraphs.
Rose Dilley, the widow of deceased, then filed an answer to said cross-complaint in six separate paragraphs, the first paragraph of which was a general denial. All the other plaintiffs joined in an answer to said cross-complaint in six paragraphs which were in substance the same as the said answers filed by Rose Dilley. These answers set up in one form and another the statute of limitations. A demurrer to each was overruled, and such rulings are assigned as
We find no available error in the record. Judgment affirmed.
Note. — Reported in 101 N. E. 313. See, also, under (1) 2 Cyc. 651; (2) 2 Cyc. 654; (3) 2 Cyc. 1014; (4) 39 Cyc. 160; (5) 39 Cyc. 605; (6) 39 Cyc. 105; (7) 39 Cyc. 152; (8) 39 Cyc. 600-605. As to resulting trusts and the circumstances they arise from, see 51 Am. Dec. 751.