Wood v. Ripley

Citation61 N.E. 608,27 Ind.App. 356
Decision Date08 October 1901
Docket Number3,771
PartiesWOOD v. RIPLEY
CourtIndiana Appellate Court

From Marion Circuit Court; H. C. Allen, Judge.

Action by Ann E. Wood against William I. Ripley for partition. From a judgment for defendant, plaintiff appeals.

Affirmed.

F. W Ballenger, for appellant.

N Morris, L. Newberger and J. B. Curtis, for appellee.

OPINION

WILEY, P. J.

Appellant was plaintiff below, and in her complaint averred that she was the owner of the undivided one-third of certain real estate, and that appellee was the owner of the other undivided two-thirds. In her complaint she sets out in detail the source of her title, and avers that the real estate has been improved by erecting thereon three houses which are of a certain rental value per month. She also avers that appellee is in possession, and that he has collected the rents from said property and converted the same to his own use. The prayer of the complaint asks for an accounting and partition. Appellee answered in one paragraph, setting up affirmative matter, to which appellant addressed a demurrer, and the ruling thereon was adverse to her. The only question raised by the assignment of errors challenges the action of the court in overruling the demurrer to the answer.

Before proceeding to the consideration of the answer, it may be important to state more fully the facts relied on by appellant to establish her title. The complaint avers that on and prior to February 8, 1864, one Orrick was the owner of the real estate in controversy, and that on that day, his wife joining him, he conveyed it to William Wood. Also, on the same day he conveyed by another deed to said Wood another and different tract of land. At the time said deeds were executed, said Wood was a married man, his wife being his second wife and childless, and his heirs being his daughter, the appellant, and other children. It is then averred that on March 3, 1865, said Orrick brought a suit to set aside the conveyance to Wood of the tract of land not here involved, and such proceedings were had as that said conveyance was set aside and the title was revested in him. That on March 30, 1866, said Orrick, his wife joining conveyed to one Simon S. Wiseman a part of the real estate, the title to which had been revested in him, and also the real estate in controversy. It is further averred that at the date of the last named conveyance the title to the real estate in controversy was in said Wood, and never was in Orrick. It is also charged that at the date of said last named conveyance, said Wood was unconscious from disease, and died in April following without regaining consciousness.

The complaint avers that the possession of the real estate in controversy was not taken by appellee's remote grantors until after the said deed was recorded July 7, 1866, and that the precise date when possession was taken is not known. It is then averred that Wood died intestate, leaving his childless second wife, and his children as his only heirs, and that appellant claims title under quitclaim deeds from all the heirs of said Wood, his second wife having died in 1891.

It is finally averred that from the time possession was taken by some one of appellee's remote grantors, appellee and his remote grantors have held exclusive possession, claiming to own the whole of said real estate, and denying that said childless second wife and children of said Wood had any interest...

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