92 Ind. 594 | Ind. | 1884
-This was a suit by the appellee, Ellen OHamrick, against the appellants, William Wilhite and Melvin Harkrider, to recover the possession of certain real estate, particularly described, in Hendricks county. The complaint was in the usual statutory form in such cases. The appellants jointly answered in four paragraphs. The appellee’s demurrer was sustained to the first paragraph of such answer. Appellee replied specially to the fourth paragraph of answer,.
Errors are assigned by the appellants, in this court, which call in question the decisions of the circuit court (1) in sustaining the demurrer to the first paragraph of their answer, and (2) in overruling their demurrer to the reply to the fourth paragraph of their joint answer.
Before considering any of the questions arising under either of these alleged errors, it may be premised that the appellee averred in her complaint, which was filed and this suit commenced on the 23d day of April, 1883, that she was then, and had been for eighteen years then last past, a married woman and the wife of one James W. Hamrick. Perhaps, this averment is out of its place in appellee’s complaint, and ought to have appeared in her reply; but counsel on both sides, below and in this court, have treated the appellee’s continuous coverture for eighteen years, as properly pleaded and shown in her complaint, and we will so consider it.
In considering the alleged error of the court, in sustaining a demurrer to the first paragraph of answer, the first point made in argument by the appellants’ counsel is, that the facts stated in this paragraph show that the appellee has lost, and is precluded from asserting, her alleged title to and right to the possession of the real estate in controversy, by an equitable estoppel in pais. It is to be observed that all the facts stated in such paragraph of answer, -which, counsel claim, constituted such estoppel in pais, occurred or transpired prior to the 19th day of September, 1881, on which day “an act concerning husband and wife,” approved April 16th, 1881, took effect and became a law. In section 2 of this act, being section 5117, R. S. 1881, it is provided that a married woman “ may, in her own name, as if she were unmarried, at
Before the taking effect of this section of the statute, it was settled law in this State that a married woman could not in any manner, during the coverture, convey or encumber her separate real estate, except by her deed or mortgage in the execution of which her husband should join. The cases are numerous, in the reported decisions of this court, wherein it was held that a married woman could not, during the coverture, estop herself by her oral speeches or conduct from asserting title to her lands, or divest herself of such title. Behler v. Weyburn, 59 Ind. 143; Hamar v. Medsker, 60 Ind. 413; American Ins. Co. v. Avery, 60 Ind. 566; Unfried v. Heberer, 63 Ind. 67; Richards v. O’Brien, 64 Ind. 418; Williams v. Wilbur, 67 Ind. 42; Suman v. Springate, 67 Ind. 115; Liberty Township, etc., Ass’n v. Watkins, 72 Ind. 459; Miller v. Albertson, 73 Ind. 343; Brandenburg v. Seigfried, 75 Ind. 568; Parks v. Barrowman, 83 Ind. 561.
Appellants’ counsel concedes, as we understand his argument, that under the law of this State, as it existed prior to the taking effect of section 5117, supra, a married woman could not divest hei’self of the title to her lands by an estoppel in pais. But counsel contend, with much earnestness, that “the proviso of section 5117 means what it says, and that it took from the appellee entirely the disability of coverture.” In other words, counsel claims that the proviso in question is retroactive in its effect and operation, in so far that the oral speeches or conduct of a married woman, prior to September 19th, 1881, when the proviso took effect, will since that date
Our conclusion is that the court did not err in sustaining appellee’s demurrer to the first paragraph of appellants’ answer.
The fourth paragraph of the appellants’ answer stated substantially that the two deeds under which the appellee claimed title to the real estate in controversy were fraudulent and void. These deeds were each dated, on the 1st day of March,, 1870, of which one was executed by appellee and her husband James W. Hamrick, to one William G. Homan, trustee for appellee Emma O. Hamrick, and the other deed was executed by said Homan, trustee, to the appellee. It was averred that these two deeds were at their dates, and still were at the commencement of this suit, as against the creditors of appellee’s husband James W. Hamrick, fraudulent and void, in this, that he, James W. Hamrick, was then and there indebted in, to wit, the sum of $10,000, and had not, at the dates of such deeds, sufficient property to pay his debts, nor did he have at any time for five years thereafter sufficient property remaining after the execution of such deeds to pay his debts. It was further averred that before and at the dates of such two
To this paragraph of answer the appellee replied that the two deeds averred to be fraudulent and void were executed more than six years before this action was begun, and the alleged fraud therein, if any, was committed more than six years before the bringing of this action.
Did the court err in overruling appellants’ demurrer to this reply ? This is the only question remaining for decision. If
But the fourth paragraph of answer was manifestly pleaded Iby the appellants as a defence to appellee’s action, and not as a cross complaint stating a cause of action and demanding affirmative relief on behalf of the appellants. It was treated below, by the court and by appellee’s counsel, as a paragraph of answer, and we will so consider it. Regarded as an answer or defence, it- is very clear that the reply thereto, setting up the limitation of six years for relief against frauds, did not state facts sufficient to constitute a good reply. Section 292, supra, simply provides that actions for relief against frauds “ shall be commenced within six years after the cause of action has accrued, and not afterward.’’ The statute has no application whatever to an answer or defence to an action, and, therefore, the reply was bad.
The appellee’s counsel contend, however, that the reply was a good enough reply for a bad answer; and they insist that the fourth paragraph of answer, to which the reply was pleaded, was clearly insufficient. Counsel for appellee have pointed out in argument a number of objections to the sufiN ■cioncy of the fourth paragraph of answer, only one of which we need notice, as that one seems to us to be well taken and to render the fourth paragraph fatally defective. The appellants claim title to the real estate in controversy underand by virtue of the sheriff’s sale thereof to one Washington West,
It follows, therefore, that the fourth paragraph of the appellants’ answer did not state facts sufficient to constitute a defence to appellee’s action. This being so, it was immaterial whether the reply to such paragraph was good or bad, for a bad reply is a good enough reply to a bad answer. The demurrer to the reply ought to have been sustained by the court to the fourth paragraph of answer; and for this reason the error assigned by the appellants, upon the overruling of their demurrer to such reply, is not an available error for the reversal of the judgment. Ætna Ins. Co. v. Baker, 71 Ind. 102; Hancock v. Fleming, 85 Ind. 571; Reed v. Higgins, 86 Ind. 143.
We find no available error in the record.
The judgment is affirmed, with costs.