143 Ind. 467 | Ind. | 1895
The appellee sued the appellants in the superior court of Vigo county, for partition of, and to-quiet title to, certain real estate in the complaint described as situate in said county, consisting of an eighty -acre tract of land.. The venue was changed to the Clay Circuit Court. The superior court sustained a demurrer to the first, and overruled a demurrer to the second paragraph of the complaint. And the circuit court sustained a demurrer to the second paragraph of the separate answer of appellant Margaret A. Stevens. A special finding of the fact's having been made on proper request, the court stated its conclusions of law thereon, overruled appellants’ motion for a new trial, and rendered judgment, quieting appellee’s title in and to one undivided half of said real estate after the court had defaulted the defendant Crawford, ' and ordered partition. There was no error in sustaining the demurrer to the second paragraph of the separate answer of appellant Margaret A. Stevens, because it was nothing more than a special denial of certain specific facts stated in the complaint, without which the plaintiff could not recover, her first paragraph of answer being a general denial of all the facts stated in the complaint. There was no need of two denials of the same facts.
The same question arises On the exception to the conclusions of law as arose on the demurrer to the complaint. Therefore, we will consider only the conclusions of law upon the facts found.
“On August 26, 1876, Sarah McGrew acquired title to the southeast quarter, northwest quarter, and northeast quarter, southwest quarter, section 17, T. 13 N., R. 7 W., in Vigo county, Indiana. On February 25, 1880, said lands were sold as the property of Sarah McGrew to Josiah .Locke, by the auditor and treasurer of said county, at private sale, for $79.27, as the taxes, penalty and costs of the years 1876, 1877, 1878 and 1879, all previous taxes on said lands having been paid.
“On January 29, 1881, in pursuance of a decree of the circuit court of said county of Vigo, against said Sarah McGrew, the sheriff of said county executed a deed conveying said lands to James M. Parkes, who died intestate seized of the same, leaving his wife, Mary J. Parkes, surviving as his widow.
“On July 11, 1882, tax deeds for said lands were executed by the auditor of said county to Josiah Locke, in pursuance of said tax sale.
“ On September 18, 1882, the circuit court of Putnam county, Indiana, in which the settlement of the estate of said James M. Parkes was pending, caused its commissioner, on the petition of the administrator of said estate, to execute a deed for the undivided two-thirds of said lands to the plaintiff James M. Reynolds, and the defendant John L. Stevens, to procure funds to pay the debts of the said estate which was insolvent; and on the same day said widow, Mary J. Parkes, executed a deed conveying to said James M. Reynolds and John L. Stevens the other undivided one-third of said lands, which deeds were duly acknowledged and recorded in the office of the recorder of said county of Vigo, April 9, 1884, by which conveyances said James M. Reynolds
“On March 29, 1884, said John L. Stevens, and the defendant Margaret A. Stevens his wife, conveyed their undivided half of said lands to their son-in-law Frank H. Eaton, by warranty deed, which was acknowledged and recorded in the office of said recorder, April 9, 1884.
“On April 21, 1884, said Eaton and his wife, by their warranty deed, conveyed said undivided half of said lands to said Margaret A. Stevens, which deed was acknowledged arid recorded in the office of said recorder, December 10, 1885, by which deed the said Margaret A. Stevens became the owner of an undivided half interest in said lands as a tenant in common with said James M. Reynolds.
“On July 3, 1884, said Josiah Locke filed his complaint in the superior court of said county of Yigo, to quiet his title by virtue of said tax deed, making parties defendant thereto said James M. Reynolds, John L. Stevens, Frank H. Eaton and others, not including said Margaret A. Stevens.
“On March 2, 1885, said Locke and his wife conveyed said lands by quitclaim deed to Stoughton J. Fletcher and Francis M. Churchman, which deed was acknowledged and recorded in the office of said recorder April 11, 1885.
“On June 4, 1885, on suggestion of the death of said Josiah Locke, said Fletcher and Churchman were substituted as plaintiffs in said action; and the defendants, not having appeared, were defaulted, and thereupon a judgment was rendered against them quieting the title of said Fletcher and Churchman. The said James M. Reynolds, John L. Stevens, and Frank H. Eaton were notified of the pendency of said action to quiet title, as
“At the time James M. Reynolds and John L. Stevens acquired title to said lands as aforesaid, September 18, 1882, John R. Brown was in possession of the same as the tenant of said James M. Parkes for a cash rental of $75.00 a year, which had been paid for the year 1882. Said Brown attorned to said Reynolds and Stevens and agreed to pay $75.00 rent for the year 1883, and $100.00 a year thereafter. Said Reynolds thereupon left the management of said common property to said co-tenant John L. Stevens, who was also in custody of their title deeds, and said Reynolds knowing nothing of said tax encumbrance, and relying upon his co-tenant to collect and apply the rents for their mutual interest, learned nothing of said proceedings to quiet title, nor of said conveyance to Frank H. Eaton and Margaret A. Stevens, nor of the facts hereinafter stated until 1891.
“Upon said consideration and inducement, said Fletcher and Churchman, on March 3, 1887, by the direction of said John E. Stevens, executed their release and quitclaim for the whole of said lands to said Margaret A. Stevens, which deed was recorded in the office of said recorder, March 8, 1887, since which date the said Margaret A. Stevens has claimed the exclusive ownership of said lands.
“On July 14:, 1890, said Margaret A. Stevens and said John L. Stevens, her husband, executed their mortgage upon the entirety of said lands to the defend
“Said John L. Stevens collected all the rents of said lands up to May 21, 1884, and appropriated the same to his own use. On May 21, 1884, when his undivided half interest was conveyed to said" Margaret, and John L. Stevens collected rents of said John R. Brown previous to the commencement of this action, the sum of §265 in cash and the sum of §-■ in labor, in mining coal, as hereinafter stated, and §-- in labor, in improving said land, and Margaret A. Stevens collected rents of said Brown to the amount of §25.. In March, 1889, said John R. Brown ceased to occupy said lands, and during the remainder of said year the land was not rented. During the year 1890 a portion of said lands was rented by said John L. Stevens to Robert Munlchouse for §60.00, of which §10.35 was paid to said John L. in cash, and the remainder in labor in betterment of the land.
During the years 1891 and 1892 the land was not rented. The land was rented by said John L. Stevens for the year 1893 to James Downs, who is still in possession, and has paid the full rent in advance to said John L. Stevens, ten dollars in cash, and some cows for the remainder. The rental value of the land up to March, 1889, was §100 a year; since which, by reason of deterioration of the premises, it has only been worth a rental of §75 a year. In addition to the sums paid to John L. Stevens, as aforesaid, said John R. Brown, in
In September, 1888, said John L. Stevens entered upon said lands, opened a coal mine and operated the sainé until the latter part of February, 1889, during which time he mined and marketed 6,000 tons of coal, which was at that time worth a royalty of five cents per ton, in the mining of which coal John R. Brown worked out a part of his said rents, as aforesaid.
On February 5, 1891, said James M. Reynolds paid $39 taxes on said lands, and in the spring of 1891 first learned by a stranger, of the said tax sales and of said conveyances to said Margaret A. Stevens, and wrote for information to said John L. Stevens, which letter was intercepted by said Margaret A. Stevens, with the intent to keep concealed from said Reynolds the facts in the case, and thereby to prevent him from taking any steps toward securing a share in the possession, rents and profits of said lands. Said Margaret A. Stevens has paid taxes' on said lands as follows: April 18, 1887, $7.22; November 7, 1887, $6,23; April 18, 1892, $22.40; November 7, 1892; $18.89. Said James M. Reynolds has received no part of the rents and profits of said lands.
Upon the foregoing facts the court states the following conclusions of law:
“1. That the plaintiff James M. Reynolds, and the defendant Margaret A. Stevens, are equal tenants in common of said lands, and the plaintiff is entitled to partition of said land and an accounting.
2. That in such an accounting the defendant should be allowed, on account of redemption of said lands, $152 and $10 attorney’s fee, with six per cent, interest on said sums from March 3, 1887 ; she should also be allowed one-half of the taxes paid by her on said land,
3. That defendant should he charged with one-half of rent collected by her or one-half of $25, and interest on same at six per cent, from 1888, and with one-half of $39 taxes paid by plaintiff in 1891, and interest on same at six percent, from February 5, 1891 ; that the balance due on said accounting in favor of defendant is $215.24, and that said defendant should have judgment for the same against the plaintiff, and that the same be a charge upon the interest of plaintiff in said land. ”
These conclusions are not as definite and specific as could be desired. There are several propositions sought to be maintained by the appellee as law, either of which, if sound and applicable to the facts found, would support and justify the conclusions of law stated. It is first contended that the purchase by Margaret A. Stevens from Fletcher and Churchman enured to the equal benefit of the appellee Reynolds, subject only to his liability to contribute his pro rata share of the expense of making the purchase or redemption, as it is called; because it is claimed that appellant Margaret A. Stevens, and appellee, James M. Reynolds, were tenants in common in their ownership of the land. And in the second place it is contended that the decree quieting the title in Fletcher and Churchman is not binding and conclusive on the defendants therein, among whom was the appellee Reynolds, because the decree was rendered without other notice than publication, and five years had not elapsed from the rendition of the decree until the deed was made by Fletcher and Churchman to Mrs. Stevens, the decree having been rendered June 4, 1885, and the deed made March 3, 1887. Consequently it is contended -.that the defendants in that decree had yet legal standing in court and were not
And it is thirdly contended that the purchase by appellant Mrs. Stevens from Pletcher and Churchman was, in legal effect, a redemption from them and their tax title. We have no means of knowing which one of these propositions it was that the trial court adopted as the basis for its conclusions of law, or that it did not adopt them all. There can be no question that the conveyance by the commissioner of the Putnam Circuit Court, to appellee James M. Reynolds and John L. Stevens, to make assets to pay the debts of, the estate of James M. Parkes, deceased, and his widow, at the same time conveying her undivided third of said real estate to the same grantees, made said Reynolds and John L. Stevens tenants in common in the land. The conveyance afterwards by said Stevens and his wife to their son-in-law, Eaton, and the conveyance by said Eaton and his wife to appellant Margaret- A. Stevens, made her a tenant in common with appellee James M. Reynolds in the land. R. S. 1894, sections 3341, 3342; R. S. 1881, sections 2922, 2923. Fountain County, etc., Co. v. Beckleheimer, 102 Ind., at page 85 ; Jennings v. Moon, 135 Ind. 168.
The principal contention of appellee’s counsel in support of the conclusions of law is best expressed in the language borrowed by this court and cited by appellee’s counsel in McPheeters v. Wright, 124 Ind. 560, at page 572, from 11 Am. and Eng. Ency. of Law, page 1082: 1 ££ The general rule is that a co-tenant’s purchase of an
And this court asserted the same doctrine in Elston v. Piggott, supra. In that case Elston had purchased Piggott’s farm at the sale of Piggott’s assignee in bankruptcy, the bankrupt having a wife at the time. That sale made Elston the owner of the undivided two-thirds of the land and Piggott’s wife the owner of the other third as tenants in common. A mortgage executed by Piggott and wife on the same land which had been sold on foreclosure sale on said mortgage, and Elston, after his purchase at the assignee’s sale, purchased the certificate of the foreclosure sale, and at the expiration of the year got a sheriff’s deed thereon and then sued Piggott and wife for possession. It was contended on behalf of Mrs. Piggott that as the relation of tenants in common in the land existed between her and Elston when he bought the certificate of the foreclosure sale it gave Elston no title as against her but enured to her benefit, and that Elston required nothing only a right to enforce contribution against her. It was there said by Elliott, J., speaking for the court, that “The question
“Appellee’s counsel contend that the appellant is precluded from asserting title under the foreclosure sale, because he was, as they affirm, a tenant in common with Martha J. Piggott, and could not, therefore, buy in an outstanding lien and build a title on it. The general rule unquestionably is, that one tenant in common cannot, by purchasing an outstanding lien, acquire a title which will evict his co-tenant. This rule, however, is subject to many • exceptions and obtains only where the relation of tenants in common exists in strictness, and where the relation is such as to require mutual trust and confidence. It is impossible to perceive how one who buys at a sale made by an assignee in bankruptcy of the husband’s interest becomes charged in such a case as that embraced in our general question, with duties of trust and confidence to the wife of the bankrupt. The title is not a common one; the interests are not reciprocal, and there is no fiduciary relationship created. The title is secured by virtue of a judicial sale, and not by the same instrument, nor from the same source as that from which the wife’s claim is derived. There is, we repeat, nothing in such a case to create relations of trust and confidence, and, therefore, the reason of the rule applicable to ordinary cases fails, and the time-honored doctrine is, that where the reason
Here the interest of Margaret A. Stevens accrued at a different time and under a different instrument from that at and under which the title of James M. Reynolds accrued. See Vasquez v. Ewiny, 24 Mo. 31; s. c. 66 Am. Dec. 694; Coleman v. Coleman, 3 Dana (Ky.) 398; s. c. 28 Am. Dec. 86.
But assuming without deciding that the tenancy here was of such a character as to create the relation of trust and confidence between Mrs. Stevens and Reynolds, precluding either from doing any act in hostility to the interests of the other ; yet, there are some other questions which must be determined favorably to the appellee before that principle can avail him in this case. The evident theory upon which the complaint proceeds is that Mrs. Stevens’ purchase from Fletcher and Churchman was voidable as against appellee, on account of the relation of co-tenancy between them and on account of the alleged defect in the notice to the defendants in the decree “quieting the title in Fletcher and Churchman, and not on account of any fraud practiced by Mrs. Stevens in inducing them to convey to her.
Though the complaint did not charge Crawford with any knowledge of any of the facts whatever, yet the decree following the theory of the complaint, that Mrs. Stevens’ purchase was void, quieted the plaintiff’s title against the defendant Crawford’s mortgage.
Mr. Freeman, from whom we have quoted above on the point now in hand, in section 156, says: ‘ ‘The purchase made by a co-tenant * * is not void, nor does the interest so acquired by him, or any part of it, by operation of law, vest in his co-tenants. They may not wish to share in the benefits of his purchase; for, in their judgment, the title purchased by him may not be paramount to that before held in common. The law gives them a privilege which they may assert. This privilege consists in the right to obtain a conveyance of the
An additional reason why the complaint in this case proceeded upon the theory that Mrs. Stevens’ purchase was void, because of the relation of co-tenancy and defective notice to Reynolds, is found in the fact that the complaint did not ask to have a conveyance made to him upon the plaintiff paying his share of the price; and the further fact that it is not alleged that the plaintiff elected within a reasonable time, or that he ever elected, to bear his portion of the expense and share in the benefits of the purchase. Nor was there any finding of these facts, and if there had been they would have been outside of the issues, and without force for that reason. Neither is there any conclusion of law that the appellee was entitled to such a conveyance; and
There is no claim in appellee’s brief that it was void or invalid for that reason or for the reason that the publication notice of that proceeding was procured on an affidavit that after diligent inquiry the residence of the defendants was unknown, though they all resided in this State. The statute authorized such a notice on such an affidavit. R. S. 1894, section 320 ; R. S. 1881, section 318. Defects in the affidavit, or its falsity, will not subject the judgment to collateral attack. Dowell v. Lahr, 97 Ind. 146; Quarl v. Abbett, 102 Ind 233; Essig v. Lower, 120 Ind. 239; Goodell v. Starr, 127 Ind. 198. Nor did the fact that the judgment was liable to be opened up on application to let in a defense impair its conclusive force so long as it stood unopened. R. S. 1894, section 609 ; R. S. 1881, section. 600.
We need not and do not decide what effect the fraud of Mrs. Stevens, as stated in the special finding, had on her deed from Fletcher and Churchman, because the facts concerning such fraud stated in the special finding are outside of the issues, and for that reason must be disi’egarded. Neutz v. Jackson Hill Coal and Coke Co., 139 Ind. 411, and authorities there cited; Brown
The circuit court erred in its conclusions of law.
The judgment is reversed and the cause remanded, with instructions to grant leave to reform the issues if the appellee shall desire to amend his complaint.