70 Ind. 9 | Ind. | 1879
— Complaint by Lydia A. Webster and James G. Webster, her husband, in the usual statutory form, against Abraham Bebinger, to recover the possession of real estate. Answer in general denial, and several special paragraphs. We need not particularly notice the latter,
The appellant complains of certain rulings in overruling demurrers to several of the special paragraphs of answer. They show no available error. Under the denial, the defendant had a right to give in evidence every defence to the action that he had, either legal or equitable. Section 596. This has been so often decided, that we do not cite authorities in support of the rule.
No error was committed in refusing to strike out the general verdict, if the special verdict is sufficient; and, if the special verdict is sufficient, it was not error to refuse to grant a venire de novo. Berlin v. Oglesbee, 65 Ind. 308.
This brings us to the merits of the case, as presented by a motion for a new trial.
The plaintiffs claim title to the land in the right of Lydia A. Webster, nee Lydia A. Fletcher. The husband, James Gr. Webster, is joined with her in the action, nominally. Lydia claims title under a clause in the will of Henry J. Bowers, her grandfather, in the following words :
“ To her daughter, Lydia Ann Fletcher, I will, devise and bequeath fifty acres of land off of the south end of the tract of land now owned by me in Sparta township, Dearborn county, Indiana; being part of lots Nos. three (3) and four (4) of section sixteen, township six, range three. The same to be held in trust for her benefit, by John L. Thiebaud, until the said Lydia Ann shall arrive at the age of thirty years, or shall be joined in marriage by and with the consent of the said Thiebaud, or my son, Isaiah A. Bowers.”
The defendant claims title to the land, as follows,: John L. Thiebaud, made the trustee of Lydia Ann in the will, was also nominated by the testator as one of the executors of the will, which was regularly probated. Thiebaud was also regularly appointed guardian of Lydia Ann, gave bond, and accepted the trust. As guardian of her property, he made application to the proper court to sell the lauds of his ward for her education and support. The application was granted, the sale ordered and made, and the land sold to Jacob E. Thompson. The sale was confirmed by the court, and the land conveyed to Thompson by the guardian’s deed, and afterwards sold and conveyed by Thompson to Abraham Bebinger, the defendant* The sale and conveyance from Thompson to the defendant are not controverted. The only question in dispute between the parties, therefore, is the validity of the guardian’s sale to Thompson.
The special verdict finds the following facts :
That on the 25th day of July,.1867, John L. Thiebaud was, by the court of common pleas of Dearborn county, appointed guardian of the plaintiff, Lydia A. Fletcher, now Lydia A. Webster; that on the 25th day of July, 1867, said guardian filed in said court his petition as such guardian, praying sa.id court to make an order directing the sale of the land of his said ward; that, said guardian having caused said real estate to be appraised by two disinterested freeholders of the county, and having executed his bond according to law, for the faithful pei'formance of his trust, the said court made an order directing the sale of said real estate at private sale; that afterwards, on the 81st day of January, 1868, said real estate remaining
1. Because Lydia A. Webster, who owned the land at the time the sale was made, was of age; and,
2. Because the court made an order of sale of said land without any petition by the guardian asking for the sale thereof.
What effect the first objection above stated might have had upon the guardian’s sale, if, after she became of age, she had objected to it, we do not inquire; but we think, after the sale was made with her full knowledge, without .objection; and after she had knowingly received the purchase-money of the land; and after the guardian had made his settlement with the court, which was approved and confirmed; and after she had sought a review of the said settlement, for the alleged wrongful sale thereof, and the case had been adjudged against her; and after the defendant and his vendor, the purchaser at the guardian’s sale, had held continued and peaceable adverse possession to her during more than seven years before this action was commenced; — the objection has no validity.
The second objection taken above does not exist in fact. The special verdict finds that such petition was filed; and, upon looking into the evidence, we find such petition was introduced at the trial as evidence. Besides, in an attack upon such guardian’s proceedings collaterally, it would be presumed that such petition had been filed, whether it was shown in evidence or not.
The special verdict finds all the facts necessary to determine the case, the law upon which is with the appellee. The judicial proceedings upon the guardian’s sale and report, and its confirmation, the conveyance to the purchase!’, the purchaser’s conveyance to the appellee, constitute, by legal construction, a title to the lands in the appellee; and the adverse possession in the appellee for five years, under
See the following authorities: Morris v. Stewart, 14 Ind. 334; Vail v. Halton, 14 Ind. 344; Davidson v. Lindsay, 16 Ind. 186; The State v. Clark, 28 Ind. 138; Dequindre v. Williams, 31 Ind. 444; Maxwell v. Campbell, 45 Ind. 360; Worthington v. Dunkin, 41 Ind. 515; Barnes v. Bartlett, 47 Ind. 98; Holland v. The State, ex rel., 48 Ind. 391; Voiles v. Beard, 58 Ind. 510; Locke v. Barbour, 62 Ind. 577; Hatfield v. Jackson, 50 Ind. 507.
The judgment is affirmed, at the costs of the appellants.