182 Ind. 454 | Ind. | 1914
Appellee brought this action to quiet title to an undivided one twenty-fourth interest in certain lands located in Howard county, and have partition of the same.
In a special finding the court found the material facts in the case to be, in substance, as follows: That Jacob Elliott died testate in Howard county in August, 1875, leaving a widow, Rachel Elliott, who was a second childless wife, and also seven children by his first wife of whom appellee was one; also certain grandchildren; that said Jacob Elliott died the owner in fee simple of the lands described in the pleadings; that on June 24, 1875, he duly executed his last will and testament in which he bequeathed to his wife, “in lieu of all her interest in all of my real estate and personal property, the sum of $500 in cash”, and, after making certain other bequests, devised and bequeathed the residue of his real and personal estate to his children and their heirs; that on September 7, 1875, James R. Lindley, executor of the will, filed in the Howard Circuit Court, his petition to sell the real estate of the decedent to make assets for the purpose of paying the debts of said decedent; that said court ordered such sale, and notices were duly published and the sale had, the purchaser being one William Elliott; that appellee was named in the executor’s petition, but did not appear
The first question here presented is, What estate did Rachel Elliott take in the lands of her deceased husband, Jacob Elliott? He died in 1875, seized of the land in fee simple; his widow, Rachel Elliott, had been his second wife and was childless; at the time of his death Jacob Elliott had seven living children. The statutes in force at the time of his death, in 1875, must be looked to for an answer to this question, and upon reading these statutes it is plain that the answer must be found in the first part of §17, and the proviso of §24. These should be read as though they were written as follows: “If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors; Provided that if a man marry a
It must not be overlooked that the claim of title asserted by appellant, grows out of the fact that he derives such right as he has, pursuant to a sale of the lands to pay the debts of the decedent, Jacob Elliott. The appellant stands in his relation to the widow, and those claiming under her, in the attitude of the creditors through whose rights he derives his claim. In Martindale v. Martindale (1858), 10 Ind. 566, which was a proceeding in partition by the childless widow, against the children by a previous marriage of the deceased husband, the judgment of the lower court was re
The case of Louden v. James (1869), 31 Ind. 69, decided at the May term, 1869, was the first case in this court in which the creditors of the deceased landowner were involved in the litigation, and upon its consideration, the mind of the court was directed to the effect of the earlier decisions upon the rights of the widow and heirs as against the creditors. The court perceived at once that the earlier interpretation of the proviso of §24, supra, was leading to consequences that probably were not considered by the court at the time of the decision of the cases involving only the childless widow and the children of the husband by a previous marriage. In order to evade these consequences, it seems that the court, instead of disapproving and overruling the earlier eases, undertook to distinguish them from the case then under review upon the notion that as between the widow and the children by the previous marriage, the effect of the proviso was to cast upon the widow only an estate for life, while as between the children of the previous mar
Some confusion has arisen in the opinions of this court arising out of the idea, apparently, that the laws of nature have something to do with the making of heirs. There have been attempts by the use of the word “forced” and other words of description, to distinguish the heirs designated by the proviso of §24 from the heirs who are related to the ancestor by blood. The supposition upon which this has been done is erroneous. The right to inherit is not a natural right. It does not inhere in any one. It is a creature of the law, and its existence and limitations must be found in the law. 2 Blackstone, Comm. (Chap. 1), 10, 11, 12 and 13; United States v. Perkins (1896), 163 U. S. 625, 16 Sup. Ct. 1073, 41 L. Ed. 287; Plummer v. Coler (1900), 178 U. S. 115, 20 Sup. Ct. 829, 44 L. Ed. 998; Strode v. Commonwealth (1866), 52 Pa. St. 181; In re Wilmerding (1897), 117 Cal. 281, 49 Pac. 181; Mager v. Grima (1850), 8 How. 490, 12 L. Ed. 1168; Dawson v. Godfrey (1808), 4 Cranch 321, 2 L. Ed. 634; Henson v. Moore (1882), 104 Ill. 403; Sturgis v. Ewing (1856), 18 Ill. 176; Carpenter v. Pennsylvania (1855), 17 How. 456, 15 L. Ed. 127; Magoun v. Illinois Trust, etc., Co. (1898), 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037; Eyre v. Jacob (1858), 14 Gratt. (Va.) 422, 73 Am. Dec. 367; Knowlton v. Moore (1899), 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969; 2 Washburn, Real Property 400; In re Mulford (1905), 217 Ill. 242, 75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. 249, 3 Ann. Cas. 986; In re Speed (1905), 216 Ill. 23, 74 N. E. 809, 108 Am. St. 189; National Safe Deposit Co. v. Stead (1911), 250 Ill. 584, 95 N. E. 973, Ann Cas. 1912 B 430; Cloud v. Bruce (1878), 61 Ind. 171; Anderson v. Bell (1895), 140 Ind. 375, 29 L. R. A. 541; Donaldson v. State, ex rel. (1915), post 615.
Ownership does not extend beyond the life of the owner. The right to transmit title to property to another at the end of the life of the owner did not exist always; it was granted by law, upon considerations of public policy, and the lawmaking power has always retained and still has the authority to designate who shall inherit. When, therefore, the General Assembly of Indiana by enacting the statute of descents designated in each of the several instances who should take the lands of a deceased owner upon the event of his death, it constituted the persons designated “heirs” and among heirs there are no degrees or distinctions, since the right of one to inherit depends upon precisely the same authority as the right of another, namely, the statutes. The children of the deceased husband by a previous wife are heirs to the childless widow, precisely in the same sense, and by the same authority as the same children were heirs to their father. The statute made them heirs in each instance, and it might have cast the inheritance upon any other class of persons with equal effect. It is concluded, therefore, that, in 1875, when Jacob Elliott died, in view of the facts apparent upon the face of the record in this cause, the childless widow, Rachel Elliott, inherited from him one-third part in value of his lands in fee simple, “free from all demands of creditors”; that the fact that her deceased husband left surviving him children by a previous wife did not in any wise affect her title, and that during the lifetime of the widow the children of the previous marriage had no interest in the lands which descended to her, and stood in relation to them, and to the widow, in so far as these lands were concerned in the same relation that any other expectant heirs bear to their ancestor while he lives. This conclusion requires that other questions presented shall be considered.
It is found as a fact by the court that “by two separate quitclaim deeds, respectively, the said Rachel joined with her second husband, Samuel Kizer, and conveyed the real estate to said William Elliott. ’ ’ Did the exe
The action of the court in ordering the executor to sell the lands involved the decision of these questions of law: (1) Did the children of Jacob Elliott have any present interest in the portion of the lands which descended to the widow? (2) What was the nature and extent of that interest? (3) Was the same subject to the lien of the creditors? The court necessarily answered each of these interrogatories. It decided that the children owned the fee in the portion of the land which descended to
In 1876, when the lands involved in this controversy were sold by the executor, in pursuance of the order of court, there was nothing in the opinions and decisions of this court that cast any doubt upon the power of the court to hear and determine the matters that were heard and determined under the petition to sell the lands. The legal atmos
At the May term, 3881, this court decided the case of Chisham v. Way (1881), 73 Ind. 362. In that case, there had been a partition suit in 1865, instituted by the children of the decedent by a previous wife, against his widow, who had been his second wife and was childless. The court had decided that the widow held a life estate in one-third of the land; and that the land was not divisible and should be sold. Sale was made by a commissioner and the widow became the purchaser. The sale was confirmed, and the court appointed a trustee to hold one-third, of the proceeds. The commissioner had paid one-third of the proceeds to the trus
In Utterback v. Terhune, supra, decided at the May term, 1881, which in its essential facts was precisely the same as Martindale v. Martindale, supra, it was determined that the second childless widow inherited her lands in fee, and it was intimated, by way of dictum, upon the authority of Avery v. Akins (1881), 74 Ind. 283, that a decree of partition had effect only to sever the unity of possession, and not to vest in any of the parties any new title. It is interesting to note this, in view of the circumstance that Martindale v. Martindale, supra, and the other cases following it, were suits in partition. At the November term, 1881, this court decided the ease of Armstrong v. Cavitt (1881), 78 Ind. 476. It was a suit in partition by the children of a decedent by a previous wife, against the remote grantee of the administrator of their father’s estate, in pursuance of an order of a competent court, upon the petition of the administrator. At the time of the proceeding there was a childless widow, and she and the children of the previous wife were parties, were served with notice, and in the case of the children, there was an answer by their guardian ad litem. The widow made default. Upon this state of facts the court decided: (1) That the childless widow took one-third in value of her deceased husband’s lands in fee. (2) That the children by the previous wife had no interest in the lands which descended to the widow, during her lifetime. And, (3) that the court had no jurisdiction to ordei this sale of the widow’s inheritance, upon the petition of the administrator, and could not acquire such jurisdiction. The first and second of these propositions are sound beyond question, but it can
The powers of a court extend to the determination of questions relating to its own jurisdiction. The power is to decide; it is not restricted to decision without error. In the case under review, the first thing that the court did was to determine that it had jurisdiction to entertain the proceeding, and to decide the matters presented. This is an irresistible inference from the fact that the court did entertain the proceeding and did so decide. The decision of this point was a judicial act, done in the course of the proceeding, and it was as final and as conclusive against collateral attack as any other judicial decision. It is a serious mistake to suppose that the decision of the court, that it had jurisdiction of the persons of the defendants, was void merely because it was erroneous. The children by the previous wife were parties to the judgment; their remedy was by appeal and they were cut off from the right to assail the judgment collaterally. The same may be said upon the subject of the jurisdiction of the court of the subject-matter. By acting at all with reference to the share in the lands that had descended to the widow, the court determined, necessarily, that it had jurisdiction to deal with it. 'When the court had so determined, whether right or wrong, the parties to the judgment were bound by the decision until it should be overcome in some direct proceeding. There was no appeal. The attack upon the judgment of the court was collateral.
When A sues B upon an open account the law gives to B his day in court, and if he does not owe the account, it is upon that day that he must assert his defense. If he makes defense and loses, or if he makes default, the judgment against him will be beyond the reach of any collateral attack. Even if it should happen that B is a woman, even a widow, the circumstance would make no change in the law. The time to resist an attack in court is when the attack is made.
It is conceded that the administrator had no right to an order for the sale of the widow’s share in the land. The court should have refused to grant it, but the difficulty here is that the court did not refuse. In a perfectly judicial way, in a judicial proceeding, with all parties in interest before the court, it decided a question of law that was presented upon the pleadings and the admitted facts, and its decision resulted in an order directing the administrator to sell the whole of the land subject only to the widow’s estate for life in one-third of it, and in doing so the court determined, not merely that the lands were subject to the lien of the creditors, but also, and necessarily, that the children of the previous wife had an estate in the portion of the lands that had descended to the widow with which it had jurisdiction to deal. That the court had power to determine finally that it did or did not have jurisdiction of the subject-matter and to conclude the parties to the record by its decision, is so well settled by this court that the matter is no longer open to question. In Bruce v. Osgood (1900), 154 Ind. 375, 378, this court in passing upon the question said: ‘ ‘ The question is not whether in truth, as this court might decide on appeal, the Superior Court of Marion County had jurisdiction of the particular case, but whether that court was competent to decide that it had jurisdiction and whether it must have so decided before proceeding to judgment. The statutes above referred to gave the court jurisdiction to entertain and decide actions of this class. Whether the particular case in question actually belonged to the class, is immaterial. The court was called upon to decide whether it did. Its judgment, if conceded to be wrong, is impervious to collateral attack. State, ex rel. v. Jackson [1889], 118 Ind. 553; Jackson v. Smith [1889], 120 Ind. 520, 523; Alexander v. Gill [1892], 130 Ind. 485; Tucker v. Sellers [1892], 130 Ind. 514; Evans
It -will not be pretended that the court of common pleas did not have general jurisdiction of the subject of the sale of lands of decedents to make assets for the payment of debts. It is apparent that the court decided that it had jurisdiction of the particular subject-matter and of the parties to the proceeding. It assumed to order the sale of the fee in the whole of the lands, and this order was the basis of the title of appellees in Armstrong v. Cavitt, supra. The ruling in that case cannot be sustained upon any legal principle. The effect of the decision is to sustain the proposition that a court has not power to render an erroneous judgment which will withstand a collateral attack. Armstrong v. Cavitt, supra, has been acquiesced in by this court a number of times. No one has ever succeeded in setting forth any foundation upon which it can remain as a correct application of the law. The same is hereby overruled. The appellant in this case was entitled to keep the land which he had purchased in good faith, in reliance upon the judgment of a competent court having general jurisdiction of the subject-matter and complete jurisdiction of the parties in interest.
Judgment reversed.
Note. — Reported, in 106 N. E. 710. As to laches of executor or administrator in applying for order of sale to pay debts of estate, see 26 Am. St. 22. See, also, under (1) 18 Cyc. 749; (3) 18 Cyc. 591; (4) 14 Cyc. 16; (5) 14 Cyc. 75; (6) 23 Cyc. 753; (7) 23 Cyc. 1090; (8) 11 Cyc. 701.