39 Ind. 528 | Ind. | 1872
This was a petition for the partition of certain real estate by the appellees against the appellant. Issue was joined, there was a trial by the court, and a finding for the petitioners, motion for a new trial by the defendant disallowed, and final judgment for partition. The defendant ap- ’ peals and has assigned two errors; first, that the court erred in overruling his demurrer to the complaint; and, second, in refusing to grant him a new trial. It is alleged in the petition, that on the 25th day of June, 1*867, the said Larkin Thompson, who was then the husband of Sarah Thompson, since deceased, conveyed to said Sarah Thompson, by deed, in fee simple, the real estate in question; that the consideration for said conveyance was the sum of eight hundred dollars, received by said Larkin from said Sarah, which sum was her own separate interest, and was received by her from the estate of her deceased father, and a portion of which sum the said Larkin used in the purchase of said tract of land; a copy of the deed being made part of the complaint and filed with it; that the deed was executed by the said Larkin and received by the said Sarah in good faith and for the consideration therein expressed; that on the 5th day of June, 1868, the said Sarah Thompson died, intestate, seized
The defendant demurred to the petition on two grounds; first, that it did not state facts sufficient to constitute a cause of action; and, second, that the court had no jurisdiction of the subject of the action. The demurrer was overruled by the court, and the defendant excepted.
He then answered admitting the execution of the deed mentioned in the complaint, but alleging that the deed was wholly void and of no effect; that the plaintiffs have no right or ownership in said land, and have no right to partition thereof on account of the following facts: that at the ■time, and long before the execution of said deed, said Sarah was the wife of this defendant. He denies that he received ' for his own separate use any sum of money of or from her by virtue of his marriage with her, or that he used any money belonging to or obtained from her in the purchase of said ■land; that she was a widow with three children in limited circumstances at the time of the marriage; that he was then fin far better circumstances than she; that in consequence of her feeble health, and members of the family, his property
Taking up the questions as they are presented by counsel,
The next question is, had the common pleas jurisdiction of the subject-matter of the action? It is conceded by counsel for the appellant that the common pleas may try and determine the title to real estate when it comes in question incidentally in a suit in that court for partition of real estate. But it is claimed that in this case it is apparent that the primary and main object of the action, is to try such title. We can not sustain this position. We are unable to see rvhy the title to the real estate was any more directly involved in this than it is in other actions for partition. This question is hardly an open one in this court. Wolcott v. Wigton, 7 Ind. 44; Fleming v. Potter, 14 Ind. 486. There was no error in overruling the demurrer to the complaint.
The next question grows out of the ruling of the court in refusing to allow Larkin Thompson to testify as a witness in his own favor on the trial of the cause. The part of the statute on which the question turns is as follows: “And provided further, that in all suits by or against heirs, founded on a contract with or demand against the ancestor, the object of which is to obtain title to or possession of land ox-other property of such ancestor, or to reach or affect the same in any way, neither party shall be allowed to testify as a witness as to any matter which occurred prior to the death of such ancestor, unless required by the opposite party or by the court trying the cause.” 3 Ind. Stat. 560, sec. 2.
We think the case comes within the spirit of this proviso, and that the appellant was properly excluded. The parties to the suit stood in the relation of heirs to Mrs. Thompson. The controversy related to the deed executed to her, and the suit was founded on it, within the spirit and meaning of the act. The suit was both by and against heirs, and the object of the action was to reach or affect the land which descended from the decedent. She being dead, the object of the act was to prevent the other party to the contract, or conveyance, from testifying concerning it. On this point, see Malady v. McEnary, 30 Ind. 273, and Peacock v. Albin, ante, p. 25.
The only other point relied upon is, that the evidence is insufficient to sustain the finding of the- court. On the contrary, we think the evidence entix-ely satisfactory. The ex
The judgment is affirmed, with costs.
Petition for a rehearing overruled.