49 Ind. App. 101 | Ind. Ct. App. | 1911
This suit was brought by appellants to set aside a guardian’s sale of real estate and to have said real estate reoffered for sale.
The following errors are relied on for reversal: (1) Overruling the demurrer to' the third paragraph of appellee Rachael Keiser’s answer to the complaint, and (2) in stating the second, third, fourth, fifth and sixth conclusions of law.
The court stated conclusions of law upon the facts found, as follows: “ (2) That plaintiffs did not commence this suit within eighteen months after the death of Samuel Traster, a person of unsound mind, and cannot maintain it; (3) that plaintiffs take nothing by this action; (4) that defendant ■Rachael Reiser recover her costs herein; (5) that plaintiffs’ cause of action herein is barred by the five-year statute of limitations; (6) that defendant Rachael Reiser is the owner in fee simple of the real estate described in her cross-complaint and in finding number three herein, and that all the defendants to her cross-complaint have no right, title to, interest in, nor lien against said real estate; that her title in and to said real estate ought to be quieted as against each and all of the defendants to her cross-complaint.”
Appellants insist that the court erred in its conclusions of law, and especially in holding that the suit is barred by the five-year statute of limitations. §295 subd. 4 Burns 1908, §293 R. S. 1881, is as follows: “For the recovery of real property sold by executors, administrators, guardians, or commissioners of a court, upon a judgment specially directing the sale of property sought to be recovered, brought by a parts'- to the judgment, his heirs, or any person claiming a title under a party, acquired after the date of the judgment, within five years after the sale is confirmed.”
It is urged that the action is not to recover the possession of real estate, that the relief sought is to have the sale set aside, the land resold by a commissioner appointed by the court, and out of the proceeds to reimburse the purchaser under the former sale, and to take an accounting of the purchase m,oney, interest and improvements on the one hand and rents and profits on the other; that appellants are not heirs of a party to the proceedings for the sale by the guardian; that the real estate was not sold under a judg
Counsel for appellants concedes that it is settled in this State that an action to recover real estate or a suit to quiet title thereto, where the real estate was sold by an administrator, guardian or commissioner, upon a judgment specially directing the sale, when brought by a party to the judgment or his heirs, is barred by subdivision four of §295, supra.
This, in effect, according to appellants’ contention, narrows the question to the proposition that the legislature in enacting the five-year clause of said section intended that it should apply only to sales made by a guardian when such guardian was a party to some adversary proceeding in which the judgment of the court specially directed the sale and authorized it to be. made by such guardian. This construction gives only a very limited application of the statute, as it is a matter of common knowledge that sales by guardians in adversary proceedings, if known to our practice, are very rare, while sales by guardians in ex parle proceedings, under the statute; are very numerous, and are the usual and ordinary mode of procedure.
But further contention upon this proposition has been foreclosed, as it has already been decided that the five-year statute is applicable to sales by guardians in ex parte proceedings, and to those made by administrators; also that the statute applies where the judgment or proceeding ordering the sale is void.
In the case of Davidson v. Bates (1887), 111 Ind. 391, the question arose in a suit to recover the possession of real estate sold by a commissioner who had been appointed in an ex parte proceeding brought by two guardians representing
The statute is held to apply, even where the sales are void, and among cases applying the five-year statute to sales by guardians and administrators are the following: Walker v. Hill (1887), 311 Ind. 223; White v. Clawson (1881), 79 Ind. 188, 192; Hampton v. Murphy (1910), 45 Ind. App. 513; Barton v. Kimmerley (1905), 165 Ind. 609; Axton v. Carter (1895), 141 Ind. 672; Fisher v. Bush (1892), 133 Ind. 315.
The statute is one of repose, and the legislative intent to limit the time within which suits may be brought to recover real estate sold as therein designated is evident from the tenor of the enactment and the language employed. The purpose is to settle titles, which, in the absence of the statute would be held defective. Perfect titles need no such enactments. It is but reasonable to believe the legislature intended that the statute should operate against those claiming title to real estate sold in the usual way under the ordinary procedure in guardian sales, and such is our conclusion.
ITaving reached the conclusion that the five-year statute of limitations applies, other questions relating to the effect and validity of the sale need not to be considered.
The trial court did not err in its conclusions of law. Judgment affirmed.