63 Ind. 67 | Ind. | 1878
This was a suit for partition by Anna Maria Heberer and her husband, Peter Heberer, against Peter TJnfried.
It was shown by the first paragraph of the complaint, that the plaintiff Anna Maria was married to Andreas Roth in the year 1845; that in 1864 Roth died, leaving her, the said Anna Maria, as his widow, and the children whose names are given; that the said Roth,at the time of
Prayer for partition and that the title of the said Anna Maria might be quieted.
There was a second paragraph of the complaint, but it was withdrawn before the issues were finally closed.
The defendant answered in three paragraphs :
1. That the plaintiffs were estopped from asserting any claim to said real estate, because, on the 28th day September, 1866, in an action in said Vanderburgh Circuit Court, in which one Anna Burkhart and others were plaintiffs, and the said Anna Maria Heberer, and her said children, and the said Peter Heberer, were defendants, for the purpose of foreclosing the mortgage executed by the said Roth and mentioned in the complaint, in which it was charged in the complaint in that action that the defendants were the heirs of said Roth, and in which the said Anna Maria was duly summoned as a defendant and made default, it was ordered and adjudged that said real estate be sold to pay said moi’tgage, and “ that from and after such sale all equity of redemption of. the said defendants be forever
2. That the plaintiffs were present at the sheriff’s sale mentioned in the first paragraph of this answer, and encouraged and permitted the defendant to become the purchaser of said real estate without sotting up any claim thereto on their part, thereby inducing the defendant to become such purchaser under the belief that he was acquiring, and had acquired, a perfect title to the whole of said real estate, and whereby the plaintiffs were estopped from setting up any claim to said real estate.
8. That, because of facts set up substantially the same as in the second paragraph, with the additional allegation, that the plaintiffs had received one-third of the purchase-money paid by the defendant, the plaintiffs were estopped from asserting any claim to said real estate.
The plaintiffs separately demurred to each paragraph of the defendant’s answer, and their demurrer wras sustained to the first paragraph and overruled to the second and third.
The plaintiffs then replied to the second and third paragraphs :
1. In general denial;
2. That, at the time of the execution by the said Roth ot the mortgage mentioned in the complaint, the said Anna Maria was the wife of the said Roth; that the said Roth departed this life in 1864, leaving her as his widow, and three children, still living; that, upon the death of'the said Roth, the said Anna Maria became the owner by descent of one-third of the real estate in suit; that in 1865, and before the suit was brought to foreclose said mortgage,
The defendant demurred to the second paragraph of the reply, but his demurrer was overruled.
The plaintiffs thereupon withdrew tlie second paragraph of their complaint and the first paragraph of their reply, and the defendant standing on his demurrer to the second paragraph of the reply, judgment for the partition of said real estate was rendered, directing, amongst other things, that one-third in value of said real estate be set off' to the said Anna Maria; and, the commissioners reporting that such real estate was not susceptible of partition without injury, an order for the sale of the same was made, and for a division of the proceeds, according to the respective rights oí the parties as established by the judgment of partition.
The first question to which our attention is invited is that of the sufficiency of the first paragraph of the defendant’s answer; and,in passing upon that question, we have only to decide whether the plaintiff’Anna Maria was estopped by the judgment of 'foreclosure, to which she was a defendant, from setting up her claim, as widow of Andreas Roth, to the land in controversy.
In the complaint in the foreclosure proceeding, it was not alleged that she had joined in the execution of the mortgage, nor that the mortgage was given to secure the purchase-money of the mortgaged lands, iior was any other fact stated tending to negative her claim to such lands as widow of tl^e deceased mortgagor. It was not even averred or shown in that complaint, that she was the widow of such mortgagor. The natural inference, from the allegation that she was one of the heirs of the mortgagor, in the connection in which it was made, would be, that she had
A judgment by default is conclusive of all that is properly alleged in the complaint, but nothing more; and, as a general rule, only upon the defendant in the character in which he is sued. Bigelow Estoppel, 65; Herman Estoppel, 191; Cronan v. Frizell, 42 Ill. 319 ; Mansfield v. Hoagland, 46 Ill. 359.
We are, therefore, of the opinion, that the court did not err in sustaining the demurrer to the first paragraph of the answer.
There is a question between counsel as to whether the plaintiffs’ demurrer to the second and third paragraphs of the answer was overruled or not, owing to some obscurity in the record; but, as the defendants demurrer to the second paragraph of the reply necessarily raised the question of the sufficiency of those paragraphs, weSiwill assume that the demurrer to them was overruled.. Batty v. Fout, 54 Ind. 482 ; Buskirk’s Practice, 179; Wiley v. Howard, 15 Ind. 169.
This court has recently decided that a married woman
This rule, we think, if possible, applies with greater force to a married woman, under the coverture of a second marriage, as regards lands descended to her as the widow of her first husband, which she is incompetent to convey, even with the concurrence of her second husband. Knight v. McDonald, 37 Ind. 463; Vinnedge v. Shaffer, 35 Ind. 341; 1 R. S. 1876, p. 411, sec. 18; Schlemmer v. Rossler, 59 Ind. 326.
, We are, therefore, constrained to hold, that both the second and third paragraphs of the answer were bad on demurrer.
This conclusion renders it unnecessary that we shall consider the sufficiency of the second paragraph of the reply, as it is a well settled rule of practice, that a bad reply is good enough for a bad answer.
We see no error in the record.
The judgment is affirmed, at the costs of the appellant.