Voorhees v. Hushaw, 30 Ind. 488

30 Ind. 488 | Ind. | 1868

Elliott, J.

The first question urged by the appellants for a reversal of the judgment is, that the complaint is bad. But they have failed to furnish such an abstract of the complaint as to present the question, and we are not required, therefore, to examine it. It may, however, be proper to remark that the complaint is in a single paragraph, and a demurrer was filed to a part of it, which was correctly overruled, and might properly have been stricken out or rejected, as a demurrer to a pai’t of a paragraph of a complaint is not permissible under the code. O'Haver v. Shidler, 26 Ind. 278.

The objection urged to the complaint, in argument, if a valid one, is of such a character as must have been taken by demurrer for that particular cause, and not being so taken, was waived.

It is also insisted, that the court erred in sustaining the demurrers to the second, fourth and fifth paragraphs of the appellants’ answer.

The fourth paragraph sets up a claim of title in the appellant Rebecca Voorhees by a parol gift by her father, and is so obviously bad that no argument is presented in defense of it.

The second and fifth, paragraphs are substantially the same, and may be examined together. By these paragraphs the appellants claim title in Rebecca Voorhees to a part of the land described in the petition for partition, by virtue of a conveyance made to her by the county auditor, under a sale thereof for taxes. It is not contended by the appellants’ counsel, in argument, that the averments in either of the paragraphs are sufficient to show a valid sale and conveyance of the land for taxes; but it is urged that, under the facts alleged in these paragraphs, the appellees arc estopped from denying the validity of that title. The facts relied on as working an estoppel are, that Solomon Hushaw, the father of said Rebecca, and under whom all the appellees claim title, being the owner of the land, voluntarily refused to pay the taxes thereon, and designedly suffered and permitted it to be returned as delinquent, and subsequently sold for taxes, and procured Furgnson to purchase it in at such sale; and that he afterwards procured Fnrgusou to assign and transfer his certificate of purchase to said Rebecca, and also procured the county auditor to convey the land to her under said certificate, with the intent and purpose, and in consideration of natural love and affection, thereby to invest her with the title to the land as a voluntary and absolute gift, and not as an advancement.

The facts alleged do not, in our judgment, estop the appellees from denying the validity of the sale for taxes, or the title of Rebecca under it. Natui’al love and affection constitute a sufficient consideration to support a conveyance, othei'wise valid, made, or procured, by a father to his child, or an executed gift, but not sufficient to support an executory promise; nor will such a promise be enforced either at law or in equity.

Estoppels intervene to prevent fraud and wrong; thus, a party will be concluded from denying the truth of his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, when such denial will operate to the injury of the latter; for, in such a case, in good conscience and honest dealing, he ought not to bo permitted to make such denial. See Ridgway v. Morrison, 28 Ind. 201, and cases there cited.

Here, it does not appear that the appellant was influenced to any act by the promise, acts, or statements, of her father; indeed, it is not shown that she did anything; she paid nothing for the conveyance, parted with no right, and in nowise changed her condition. She was simply passive and received the conveyance Avhon it Avas made to her.

If she fails to1 hold the land, she is placed in no worse condition than she would have been if all her father did in reference to the matter had never transpired. She may fail in an expected benefit, which she supposed Avas voluntarily bestoAved upon her; but it cannot, in any legal sense, be said that she is injured.

Wo think the court did right in sustaining the demurrers to the second, fourth, and fifth paragraphs of the answer.

It is claimed that no demurrer or reply Avas filed to the second paragraph of the answer, and that it remains undisposed of. Wo do not so understand the record. It first shows that a demurrer, which is set out, Avas filed to that paragraph, and overruled; the plaintiffs then replied, but afterwards Avithdrew the reply, by leave of the court, and “refiled the demurrer;” afterwards the demurrer was withdrawn to enable the plaintiffs to file a motion in reference to the paragraph. The motion having been disposed of, the record shows that the demurrer Avas “refiled” and sustained. The pleading having been once copied into the record made out on appeal, it Avas not necessary to copy it again when introduced into subsequent parts of the record; a reference to it by which it can be identified is all that is necessary.

Overruling the appellants’ objection to the report of the commissioners who made the partition, is the only remaining question pi’esented.

The objections to the report are based on a misapprehension of the facts stated in it.

Among the lands to be partitioned were the west, half of the north-east quarter of section twenty-three, in township twenty-one, north of range seven; the north half of the west half of the south-east quarter of the same section; and four undivided sixths of the south half of the last named tract.

It will be observed that the two half-quarter sections adjoin each other; the one first described lying immediately north of the latter. One objection urged to the report is, that whilst the first described tract only contains eighty acres, shares amounting to one hundred and forty-seven acres are assigned out of it, leaving the last described tract undivided or assigned. The objection is not true in point of fact. The commissioners commenced the partition of these lands, by first assigning to Joseph Hushaw thirty-seven acres, across the north end of the west half of the north-east quarter of the section. Then to Anna IIouver twenty-eight acres adjoining that assigned to Joseph, on the south. These two shares, it will be observed, leave fifteen acres of that tract. Next follows the share assigned to Margaret Ilushaw, which is described in the report thus: “ Twenty-eight acres in the west half of the northeast quarter of section twenty-three,” &c., “and in the north part of the north-Avest quarter of the south-east quarter ” of the same section, “adjoining the share assigned to Anna Ilouvor, on the south.” Next is assigned to Rebecca Voorhees, the appellant, “twenty-seven acres in the west half of the south-east quarter” of the section, “ adjoining the share assigned to Margaret, on the south.” Thi3 share just embraces the residue of the north half of the west half of the south-east quarter of the section, not included in that assigned to Margaret. And to Louisa Hershberger is assigned twenty-seven acres more or less, in the same half quarter section, adjoining the share assigned to Rebecca, “ and embracing the residue of said eighty-acre tract, except the six and two-thirds acres across and off the south end of the same, heretofore assigned William S. Coon, and except the undivided interest in said twenty-seven acres belonging to another.” The parties to this suit were the owners of only four-sixths of this forty-acre tract; one-sixth was owned by Coon, and the report shows that it had been previously assigned to him — six and two-thirds acres, across the south end of the the tract; the other sixth belonged to some one whose name is not given; and the assignment to Louisa covers the forty acres, except that assigned to Coon, but subject to the sixth owned by the person not named, which would leave to her about twenty-seven acres.

D. W. Voorliees, J. Ristine, T. F. Davidson, and J. M. Butler, for appellants. S. C. Willson, W. H. Mallory,and J. McCabe, for appellees.

The objections to the report were not well taken, and were therefore properly overruled.

The judgment is affirmed, with costs.

Gregory, J., having been of counsel, was absent.