Shaw v. Swift

1 Ind. 565 | Ind. | 1849

Perkins, J. —

Bill in chancery, filed July 8, 1842. The bill alleges that James Powell died intestate, possessed in fee simple of the 60 acres of land described in the bill, which descended to his heirs; that those heirs are the complainants, Mary Swift and her husband James, and Sarah Reeder, and William Powell, William Spicer, and Jemima Spicer, and the heirs of Henry Powell, and of Reeder Powell and James Powell; that advances were made by James in his lifetime to William Powell, son, and Jemima Spicer, daughter, and her husband, and to James and Henry Powell to tbeir full shares respectively, and that this estate should be divided between complainants and the heirs of Reeder Powell, deceased. The bill further alleges that Reeder Powell, deceased, became the administrator of James, deceased, and fraudulently procured an order to sell the land, in the bill mentioned, as administrator, and did sell it, and on the 6th of November, 1828, nominally deeded it to Jonathan Shaw, but that the sale was really to himself (the administrator) through Shaw, who, by arrangement, bought for the administrator {Reed-er Powell), and subsequently, on the 3d of December, 1828, reconveyed to him; that Shaw never paid anything on the property, and never took possession, dec. Prayer that the sale be set aside, &c.

G. H. Test, for the plaintiffs. J. S. Newman, for the defendants.

A guardian ad litem answered for Reeder Powell’s heirs. It is immaterial what his answer may be, as it- cannot avail anything against them or for them. Jonathan Shaw answered. His answer need not be noticed as it appears again in the evidence by way of a deposition. William Powell released his interest;, the other defendants made default.

The bill is sustained by the proof.

The Court below set aside the sale and made partition jofjthe land as prayed.

The heirs to whom this land descended had a right to have the administrator’s sale to himself set aside by application in a reasonable time, upon payment of purchase- , money, improvements, &c. Sturdevant v. Pike, in this Court, November term, 1848 ⁽¹⁾, and cases cited. In this case nothing is shown to have been paid on the land by the administrator {Reeder Powell) out of his own funds, and the improvements made by him are not equal in value to the rents, which have not been claimed by the heirs; and under the circumstances of this case we cannot say the complainants are barred by lapse of time.

Per Curiam. —

The decree below is affirmed with costs.

(1) See ante, p. 277.