60 Ind. App. 69 | Ind. Ct. App. | 1915
Appellant’s complaint is in three paragraphs. In each paragraph he alleges that he is the owner of the one-third part of a certain 60-aere tract of land in Miami County, and that appellees, Edward F. and Sarah (or Sallie) Wood, and William P. and Mary E. Rarey claim to own the remaining two-thirds. By the first paragraph he seeks to recover one-third of the rents and profits of said lands from 1894; by the second paragraph, he seeks to quiet his title to said one-third, and by the third paragraph he prays partition. Before judgment the cause was dismissed as to Rarey and Rarey, leaving as defendants appellees Wood and Wood. Demurrers to appellees’ cross-complaint, and third, fourth and fifth paragraphs of answer were over
Error. is assigned on the overruling of the demurrers. The third paragraph of answer and the cross-complaint, each of which is lengthy, are practically identical in averments. In each of them the facts are set out, by virtue of which appellant claims to be the owner of said one-third, and by which appellees claim to be the owners of the whole of the lands. The essential features of said paragraph of answer and said eross-eomplaint are as follows: That in March, 1893, Eliza Jane Williams died intestate, owning in fee the tract of land, and leaving surviving her, as her only heirs at law, the appellant, her husband, and Leslie Williams and certain other children. There are set out in detail the proceedings by which said lands were sold at an administrator’s sale, for the purpose of paying the debts of the estate of said Eliza Jane Williams, said Rarey and Rarey being the purchasers for the sum of $1,850. The petition, order and report of sale, and administrator’s deed described said lands as a whole, rather than the undivided two-thirds or any other part thereof. The administrator’s petition for an order to sell the lands alleged that Eliza Jane Williams died intestate; that appellant, as her husband, and said children survived her; that she owned the land in fee simple, and that she left no personal estate. The existence of debts against said estate is alleged as follows: “The claims against said estate are, amount due Shirk estate $1,160; amount due ditch lien $372; funeral expenses and expenses of last sickness about $100; taxes due about $25.”
As indicated, it further appears from the paragraph of answer and said eross-complaint that the notice of sale was to the effect that the lands described as a whole, would, at a, named day, be offered for sale; that the report of sale was to the effect that the lands described as a whole had been sold to Rarey and Rarey, and that the administrator’s deed was to the effect that the administrator by order of court did thereby convey the lands described as a whole, to the purchasers. It is further alleged in each of the pleadings that the entire sum realized from the sale of the land was applied in discharge of the debts of the estate; that included in the debts so paid were two items secured by mortgage on the lands sold; that the first of the mortgages was executed by the decedent and appellant on November 3, 1891, to secure notes in the original sum of $1,400, executed by decedent to Milton Shirk, executor, for an unpaid balance of the purchase price of the land; that the second of the mortgages was executed by appellant and decedent
We would not be understood as indicating that the special circumstances to which we have called attention as possibly or probably existing in the case at bar, and' which may or may not have influenced the court’s action in directing the sale of the whole of said lands, are necessary in order that this case may be brought within the scope of Stone v. Elliott, supra. We merely illustrate that there are circumstances under which the court has direct statutory authority, and authority based on waiver and estoppel to direct the sale of the entire title to the deceased wife’s estate, for the purpose of paying the debts of her estate, and as against the positive and direct attack of the husband on the proceedings. It follows that the case at bar would come within the rule announced in Stone v. Elliott, supra, even were that decision substantially narrower than it is. On authority of that case, the judgment is affirmed.
Note. — Reported iu 107 N. E. 683. As to tbe effect of quashing writ on execution sale, see 15 Am. Dee. 92. See, also, under (1) 31 Cyc 326, 333, 351; (2) 18 Cyc 691; (3) 18 Cyc 797.