56 Ind. App. 572 | Ind. Ct. App. | 1914
This is an action brought by appellants
The complaint is length y and we indicate only the substance of enough of the facts averred therein to intelligently present the questions raised by the objections urged against it. These facts are as follows: George Bollenhacher died testate in Monroe County, Indiana, September 17, 1885, seized with the fee simple title to the real estate in controversy. The testator gave to his wife Margaret all his property real and personal for her use as long as she remained his widow or during her natural life, except the interest of the testator in the firm property, both real and personal, of Bollenhacher & Sons, which property he devised to his sons Martin 0., William P., Samuel M., and Jacob I. Bollenbacher. At the death or remarriage of the widow all the property of the testator then remaining was to be divided equally among the testator’s children, naming them. The testator’s wife, Margaret, was named as executrix of the will, but never qualified as such, never remarried and died November 1, 1898. Some of the children of the testator mentioned in the will died leaving children. The appellants are either children of the testator or children of such deceased children and they, together with the appellee, George W. Bollenhacher, constitute the only legatees and heirs of the testator, and the complaint avers facts showing that under the will of such testator, they are the owners in fee simple and tenants in common of and entitled to the immediate possession of the real estate described in the com
The substance of these additional averments is in brief as follows: No administration was ever had on. the estate of the testator until October 31, 1894, “when a pretended administration was had without authority of law and in express violation of the decedent’s act of the State of Indiana.” The title and possession of appellees other than George W. Bollenbaeher in and to the real estate “rests upon certain judicial proceedings which are void in this, to wit:” On April 6, 1888, the “First National Bank of Blooming-ton” began an action against the heirs and devisees of the testator, naming them, to recover judgment on a $2,500 note executed by the firm of Bollenbaeher & Sons, composed of the testator and George W., Martin C., and William P. Bollenbaeher and to recover judgment against George W. Bollenbaeher on two notes for the sum of $2,500 and $5,000, respectively, and executed by George W. and his father, the testator, such last two notes being secured by a mortgage executed by the testator and his wife, Margaret, on the real estate in question together with other lands of such testator, such mortgage containing an express agreement to pay the debts secured thereby. The plaintiff bank, in said proceeding, sought to foreclose the mortgage, and in its complaint alleged that “no administration had been had on the estate of decedent”, testator; that the executrix named in the testator’s will had never qualified and no letters executory or of administration with the will annexed had ever been issued on said estate. The several defendants to such
The cases, supra, relied on by appellants hold simply that the section of statute quoted, prohibits the bringing of any suit against the heirs or devisees of a deceased person to foreclose any mortgage or other lien executed by such decedent
The complaint in this case avers that the complaint in the foreclosure proceeding alleged that there had never been any administration of the estate of George Bollenbacher, deceased, and showed that more than one year had expired after his death before the bringing of such proceeding. It is questionable whether the section of statute quoted was intended to apply to such a case, but assuming, without deciding, that it does apply, our Supreme Court, in construing §277 Burns 1901, being §277 Burns 1914, §276 R. S. 1881, which provides for making the assignor of a claim arising out of contract, where the assignment is not by endorsement in writing, a party defendant, held, in effect, that where the complaint showed that such assignor was dead and there
Judgment affirmed.
Note. — Reported in 104 N. E. 55. As to collateral attacks upon judgments, see 94 Am. Dec. 766. As to wken receiver may be appointed to take care of mortgaged property, see 72 Am. St. 74. As to what title or interest will support an action of ejectment, see 18 L. R. A. 781. As to the sufficiency of possessory title, see 46 L. R. A. (N. S.) 487, 508. See, also, under (1) 18 Cyc. 944; (2) 31 Cyc. 293, 738; (3) 31 Cyc. 312; (4) 11 Cyc. 691; (5) 23 Cyc. 1055, 1078; (6) 27 Cyc. 1512, 1792; (7) 34 Cyc. 164; (8) 15 Cyc. 20; (9) 31 Cyc. 109.