71 Ind. App. 551 | Ind. Ct. App. | 1919
— The appellant and appellee were formerly husband and wife. A divorce was granted to appellant December 14, 1915, and she on the same day .commenced this action against the appellee. An-amended complaint was afterwards filed alleging said marriage and divorce, and charging in.substance that on April 12, 1907, while she and appellee were husband and wife, she contracted for the purchase of certain real estate for the sum of $1,300; that at that time she paid out of her individual money $100 on the purchase price; that a contract for the purchase of said real estate was made to appellant and appellee jointly; that she paid the balance of the purchase price out of her own estate, the final payment being made in May, 1910 at which time a deed was executed in which appellant and' appellee were named as
Appellee filed a cross-complaint for partition, to which appellant filéd an answer in which she set out the same facts as stated in the amended complaint. Appellee then filed a demurrer for want of- facts to the amended complaint, and also' to the answer to his cross-complaint, which were sustained. Appellant refused to plead further, and judgment was rendered against her. The errors assigned are that the court erred in sustaining each of said demurrers. . A memorandum filed with each demurrer challenged the sufficiency of the pleading, for the reason that the decree of divorce fully and finally adjudicated the property rights of the parties.
There is no allegation that she did not intend that the deed should be made to herself and husband as provided in the contract of purchase. The allegation in the pleadings that she “continued to believe that she was the sole owner thereof until immediately prior to the beginning of this action” is not equivalent to saying that she did not know that the deed had been made to herself and husband. As we construe the allegations of the complaint and of the answer to the cross-complaint, she meant to convey the idea that, when the contract for the purchase of the real estate was made, she knew that it provided that the deed, when made, should be made just as it in fact was made and that, when the payments were all made, her husband, with her implied knowledge • and consent, but without her express knowledge and consent, caused the deed to be made out in accordance with the terms of the contract.
With this knowledge she prosecuted her action for divorce and procured a decree of divorce and judgment for alimony, and, probably not being satisfied with the judgment for alimony,- saw an opportunity in this action to secure the whole of the real estate in controversy. It will be remembered that the complaint in this action was filed the same day the décree for divorce was entered,
It is not necessary for us to determine whether the appellant might or might not have maintained an action if it were charged that she did not learn of the condition of the title until after the decree of divorce had been granted and the court had lost jurisdiction, or if, through fraud, her husband had induced her to convey the real estate to him, and where the court did not hear evidence as to such title or consider
There was no error in the action, of the court in sustaining the demurrers to the complaint and answer to cross-complaint. Judgment affirmed.