153 Ind. 648 | Ind. | 1899
Russell B. Watkins died in December, 1894, intestate. In 1895 appellee, as administrator of his estate, filed a petition in the Montgomery Circuit Court to sell 200 acres of real estate to pay the debts, alleging the same to be all the real estate owned by the deceased at the time of his death. Appellant, the widow, and the two children of said deceased, his only heirs, were made defendants to said petition. Appellant filed an answer and also a cross-complaint, in which she alleged that she was the owner in fee simple of 100 acres of said real estate, describing the same, and set
This proceeding is brought by appellee against apj>ellant to procure an order to sell the 100 acres of real estate, the title to which was quieted in her by said decree, subject to said indebtedness, to make assets to pay said debts. While the application seems to have been docketed in the court below as an independent action, it is, and must be treated as a part of the original proceeding brought to sell the decedent’s real estate to pay debts, provided for by §2501 Burns 1894, §2346 Horner 1897. Appellant’s demurrer for want of facts to the petition to sell was overruled, and she filed an answer in six paragraphs. Appellant withdrew the first and second paragraphs of answer, and appellee’s demurrer for want of facts to the third, fourth, fifth, and sixth paragraphs of answer was sustained, and the court found in favor of appellee, and, over appellant’s motion in arrest of judgment, rendered judgment ordering the sale of the undivided two-thirds of said real estate to pay said indebtedness.
The errors assigned call in question the action of the court, in overruling the demurrer to the application for an order for a further sale of real estate, in sustaining the demurrer to the third, fourth, fifth and sixth paragraphs of answer, in overruling the motion in arrest of judgment and the motion to modify the judgment.
The correctness of the rulings of the court challenged by the assignment of errors depends upon whether the part of the judgment and decree in the original proceeding, which provides that the 100 acres of real estate in controversy is subject to and liable for the indebtedness of the decedent,
Appellant insists that said part of the judgment is void, (1) because there was no pleading authorizing such a limitation of her title, and the same is therefore outsidé of the issue; (2) because the court had no jurisdiction to order a sale of her lands to pay her husband’s debts.
Appellee by his petition in that case asked for an order to sell 200 acres of real estate to pay the debts of Bussell B. Watkins, deceased. Appellant’s answer to said petition and her cross-complaint, and appellee’s answer thereto, put in issue the title to said 100 acres, and every right, interest, and claim of appellant and also of appellee as administrator were put in issue. Appellee was not required to plead any matter of estoppel or any other defense in answer to appellant’s cross-complaint, for the reason that under §1067 Burns 1894, §1055 Horner 1897, he was entitled to make and give in evidence any defense either legal or equitable that he had to her cross-complaint. East v. Peden, 108 Ind. 92. If a legal or equitable defense existed to appellant’s cross-complaint, and appellee had failed to prove said defense at the trial, the same would have been lost the same as if it had never existed, and could not have been asserted in another action. Indiana, etc., R. Co. v. Allen, 113 Ind. 581, 587, 592; East v. Peden, 108 Ind. 92; Watkins v. Winings, 102 Ind. 330; Faught v. Faught, 98 Ind. 470, 475, 479.
In Indiana, etc., R. Co. v. Allen, supra, the court said: “The great object to be accomplished by the statutory action to quiet title is to settle in one action all conflicting claims. * * * In Green v. Glynn, 71 Ind. 336, it was said, The very object of the action to quiet title is to determine all conflicting claims, and remove all clouds from the title of the complainant. If one having a claim is brought into court by a complaint to quiet title, and fails to assert his claim, he is
The 100 acres of real estate claimed by appellant in her cross-complaint had been devised to her by her father, but she and her husband had conveyed said real estate to a trustee who reconveyed the same to her husband several years before his death. It was in her husband’s name at the time of his death, and by her cross-complaint she assailed said conveyances and. sought to have them set aside, and the title to said real estate, in fee simple, .quieted in her, as against her children, and appellee, representing her husband’s creditors. The ownership of said real estate, and its liability to sale to pay the debts of' her husband were in issue in said cause, and within these issues the court adjudged in that case that said real estate was subject and liable to sale for the payment of the debts of her deceased husband, and that the same should be sold to pay any of such debts remaining unpaid after exhausting the - other assets of the estate, if she failed to advance the money to pay the same, and that, subject to said indebtedness, the title to said real estate, in fee simple, be quieted in her. The title to said real estate in fee simple, it is true, was adjudged to be in her, but subject to
The only question adjudicated in Lewis, Adm., v. Watkins, 150 Ind. 108, was that said appellant in that case, who is also the appellant here, was entitled to- one-third of the gross proceeds of the sale of the 100 acres of real estate first ordered sold, and that so- far as the judgment directed the administrator to pay her part' of the proceeds of said sale on any debts of the decedent, other than the mortgages in the execution of which she had joined, the same was void. The remainder of the judgment was not questioned, but on the contrary the legal effect of the judgment and conclusions of law were set forth in Lewis, Adm., v. Watkins, supra, the same as they have been construed in- this appeal. Binding no available error in the record, the judgment is affirmed.
Hadley, J., took no part in the decision of this cause.