127 Ind. 520 | Ind. | 1891
John Scott died the owner of certain real estate in Wayne county, and this is an action for the partition of the same between his widow and children, who are parties to the suit. It was sought to charge, and the court did charge, the appellant with an advancement to him of sixty acres of land conveyed to appellant by his father, John Scott, in his lifetime.
The first question presented and discussed is as to whether or not the evidence shows the land to have been an advancement, and we are favored with a learned and interesting argument on behalf of counsel for the appellant as to the definition and nature of an advancement, but what it takes to constitute an advancement is so well understood' by the legal profession, and the books are so replete with definitions of an advancement that we regard it unnecessary to go into the question and attempt to formulate a definition which would cast any light upon the question presented. The most important legal principie to be considered in determining the question presented is as to what legal principle applies in weighing the evidence adduced, from which it must be determined whether the land was transferred as a gift, an advancement, or under a bargain and sale by which it was to be paid for at a stipulated amount, and which amount stands as an unliquidated indebtedness against the appellant. If an advancement at all, it remains so regardless of any technical definition that maybe given to the word “advancement.”
In the case of Buck v. Fiery, 110 Ind. 444 (448), the
The next reason urged why the judgment should be-reversed relates to the form of interlocutory order for partition.
The interlocutory order and judgment is as follows : “ It is, therefore, ordered, considered and adjudged that each of the said plaintiffs, Laura Harris, E. Celeste" Bond, Mary Bond and Ionia Bond, is the owner of the undivided two-fifteenths of the real estate described in said complaint, and situate in Wayne county, State of Indiana, to wit: The east half of the northwest quarter of section thirty-two (32), township seventeen (17), range thirteen (13) east, excepting twenty (20) acres out of the southeast corner of said quarter, beginning at the southeast corner of said quarter; thence west forty-one (41) rods and two and one-half (2J) links; thence east forty-one (41) rods and four (4) links; thence south seventy-seven (77) rods and twenty-two (22) links, each share of which is enhanced in value by the said advancement to said James A. Scott; that said Martha J. Scott is the owner in fee of the undivided one-third of said real estate, and that said James A. Scott is the owner of the
This is a proper form of a judgment. The court, where partition is ordered, can do no more than fix the amount to be charged against a co-tenant as an advancement, and the commissioners appointed to make the partition make the
The commissioners, in making partition in any case, apportion and set apart to each tenant by metes and bounds the portion in value to which such tenant is entitled, and when there are advancements to be taken into consideration, they ascertain the value of the land to be partitioned, together with the advancements to the tenants, and apportion to each tenant his share of the real estate. If by reason of an advancement a tenant is entitled to no part of the real estate,, then they apportion the same between the other tenants.
The act of making the computations and deductions is not a judicial act, but a mere computation, based upon the judgment of the court defining the share in the estate to which each tenant is entitled, and to be charged against any tenant as an advancement. This is the only practical way a partition could be made by commissioners, otherwise the court would have to hear evidence as to the value of the land, and make partition without the aid of commissioners, which is not contemplated by our statute and mode of procedure.
The next and only additional question presented for decision is admitting the deposition and evidence of Martha J. Scott, widow of the deceased, who was a party defendant.
The sole question in controversy relates to the advancement to the appellant. This question in no way affected the rights of the widow. She was entitled to one-third of the real estate sought to be partitioned regardless of whether the land conveyed by her.husband in his lifetime, in which conveyance she joined to the appellant, was an advancement or not. While she was a party to the suit she had no interest in the controversy in relation to the advancement and to which her evidence related. The grounds of objection stated to her deposition, and to certain portions of it, were based upon the fact that she was the widow of John Scott, deceased, through whom the parties claim title to the land, and
No objection was made in the court below to the evidence on account of it being confidential communications between the witness and her husband, hence no objection to its competency can be presented in this court on the grounds of confidential communications, and the question here presented is as to whether the evidence was objectionable or not for the other reasons stated.
It is contended that Mrs. Scott was an incompetent witness under section 499, R. S. 1881.
The word “ party,” as used in this section, has been construed to mean a party to the issue, and not merely a party to the record, and if merely a party to the record it must appear that he has some interest in the suit in common with the party calling him as a witness in order to render him incompetent as a witness. Spencer v. Robbins, 106 Ind. 580 (587). This is decisive of the question involved in this case. Mrs. Scott, while a party to the record and to the suit, had no interest in the result of the issue joined as to the question of advancement to the appellant.
There is no error in the record.
Judgment affirmed, with costs.