Armstrong v. Hufty

• Decision Date: 28 November 1899
• Docket Number: 18,504
• Citation: Armstrong v. Hufty, 156 Ind. 606, 55 N.E. 443 (Ind. 1899)
• Parties: Armstrong et al. v. Hufty
• Court: Indiana Supreme Court

55 N.E. 443

156 Ind. 606

Armstrong et al. v. Hufty

No. 18,504

Supreme Court of Indiana

November 28, 1899

Rehearing Denied June 28, 1901, Reported at: 156 Ind. 606 at 630.

From the Carroll Circuit Court.

Affirmed in part and reversed in part.

Jesse C. Moore, for appellants.

W. C Smith and G. W. Julien, for appellee.

OPINION

Monks, J.

Appellee, Jasper J. Hufty, brought this action against appellants to quiet his title to three tracts of real estate in Carroll county, Indiana. The first tract contained eighty acres, the second forty-nine and sixty-one one-hundredths acres, and the third four acres. Appellants Armstrong, Sampson, and Sampson filed a cross-complaint against appellee and a part of their co-appellants to quiet their title to all of said real estate. Appellant Edward E. Bowen filed a cross-complaint against his co-appellants and appellee to quiet title to the four-acre tract. After issues were joined and the evidence was heard, the court made a special finding of facts and stated conclusions of law thereon in favor of appellee against all the appellants as to the first and second tracts, and against all of the appellants, except Bowen, as to the third tract, and as to that tract that neither appellee nor appellant Bowen was entitled to have his title thereto quieted as against the other. The judgment followed the conclusions of law. The errors and cross-errors assigned challenge the correctness of each conclusion of law.

It appears from the special finding that Joseph Sampson died testate on June 10, 1872, leaving as his only heirs at law his widow, Caroline Sampson, and his children, Dora Armstrong, and Anna and James Sampson. He died the owner in fee simple of the first and second of said tracts, and claimed to be the owner in fee of the third tract, the facts concerning the ownership of which are specifically stated hereafter. His last will and testament was duly admitted to probate. The clause which devised his real estate is as follows: "I give to my beloved wife, Caroline Sampson, all my property of every kind, real and personal, including moneys, rights, choses in action, credits and effects, which may remain after my debts and funeral expenses shall be paid, to be her own forever, she taking care of, providing for, raising, and educating our children, and she also providing that whatever of said property, either real or personal, shall remain undisposed of at the time of her death shall descend and be vested in our children." Said Caroline Sampson died testate on January 20, 1878, and the administrator of her estate filed a petition to sell said three tracts of real estate, making said Dora Armstrong, Anna Sampson, and James Sampson defendants thereto. It was alleged in said petition that said Caroline Sampson was, at the time of her death, the owner in fee simple of said real estate; that the eighty-acre tract was correctly described; the forty-nine and sixty-one one-hundredths acre tract was described as follows: "Forty-nine and sixty-one one-hundredths acres off of the north end of the fractional north half of the northwest quarter of section twenty-eight, in township twenty-five north of range three west", which was incorrect in this, that it should have read "south" instead of "north" before the word "end." The four acres were described as follows: "Also four acres of land described as follows, to wit: Commencing at the southeast quarter of section twenty-one in said township twenty-five north of range three west, running thence north fifty-four rods to the center of the State road, thence west a sufficient distance to contain four acres, said lands being a part of the same lands in said section of which Joseph Sampson died seized, and being in the southeast quarter of said section twenty-one." Said petition asked an order to sell said real estate to make assets to pay the debts of her estate. Notice of said petition was given in all respects as required by law, and the defendants were defaulted. Anna and James Sampson were minors, and a guardian ad litem was appointed, who filed an answer. After hearing the evidence the court found in favor of the petition, and the real estate being appraised at $ 3,200, an additional bond was filed, and said real estate was ordered sold. After due notice the same was sold to appellee for $ 3,225, and the sale approved by the court. On October 17, 1885, the administrators of said estate, pursuant to the order of the court, executed to appellee a deed for said real estate. The real estate was described in the appraisement, order to sell, notice of sale, and in the administrators' deed in the same way that it was in the petition to sell. The administrators of said estate intended to describe the forty-nine and sixty-one one-hundredths acres and the four acres as they are described in appellee's complaint in this cause. Said lands and the eighty acres described in the petition were the only lands owned by said Caroline Sampson in said sections twenty-one and twenty-eight at the time of her death, and they were the only lands in said sections owned by Joseph Sampson at the time of his death. The said two tracts, containing forty-nine and sixty-one one-hundredths and four acres, respectively, owned by said Caroline Sampson at the time of her death, were actually sold by said administrators to appellee, but through the mutual mistake of administrators and their attorneys, and the appellee, said erroneous and defective descriptions were used in describing said lands instead of the true and correct ones set forth in appellants' complaint. Before said lands were sold to appellee, all the lands owned by said Caroline in said sections twenty-one and twenty-eight, as described in the complaint, were pointed out to him as the lands for which they had obtained an order to sell in said proceeding, and which they were offering for sale, and appellee believed that he was buying all of said lands, and, after the sale, actually took possession of the same, as described in his complaint, and has held, and now holds, the same by virtue of said administrators' sale and deed, and has so held them for the eleven years last passed. Appellee paid the administrators the full amount of the purchase money, and they charged themselves therewith, and on final settlement of said estate they paid into court, for distribution among the heirs of said Caroline, the sum of $ 621.17, which was the full amount remaining from said estate after the payment of the debts and liabilities of the estate; that, on proof of heirship, appellants Armstrong, Sampson, and Sampson each received and receipted for his share of said sum paid in by the administrators, and still retains the same.

As to the four-acre tract the court found that on July 1, 1861 Reuben Thayer and wife conveyed by warranty deed to one Austin the following described real estate in Carroll county, Indiana: Beginning at a stake on the south line of section twenty-one township twenty-five north of range three west, eighty poles west of the southeast corner of said section, thence west sixty poles to a stake, thence north fifty-eight poles to the center of the road leading to Pittsburgh, thence east along said road sixty poles, thence south fifty-four poles to the place of beginning, containing twenty-one acres; which deed was duly recorded December 26, 1860. On July 1, 1861, said Austin and wife executed to said Thayer and wife a mortgage on the real estate conveyed by Thayer and wife to Austin (the description thereof contained in the mortgage being defective) to secure the payment of a promissory note for $ 125, signed by said Austin payable to Reuben Thayer. Said mortgage was recorded in the proper record December 26, 1861. On December 18, 1861, said Austin and wife executed a warranty deed conveying to one Benham "four acres off of the east side of the twenty-one acres conveyed by Thayers to said Austin". Said deed was recorded May 12, 1862. On September 26, 1864, said Benham executed a warranty deed conveying to one Downs said four acres of real estate, which deed was recorded October 29, 1864. On January 30, 1865, said Downs and wife executed to Peter and Abigail Striker a warranty deed for said four acres of real estate. This deed was recorded February 1, 1865. On February 1, 1865, Peter and Abigail Striker executed a warranty deed conveying to Joseph Sampson said four acres of real estate. Said deed was recorded February 5, 1870. On the same day, and before said Austin sold and conveyed said four acres to Benham, Thayer, the payee of the note secured by said mortgage executed by Austin and wife, released the four acres, so sold and conveyed by Austin to Benham, from said mortgage and the lien thereof, by a release written on the face of the record of said mortgage and signed by him and attested by the recorder of said county. On September 24, 1866, said Thayer, the payee of said note, assigned the said mortgage to James Matthews, and said Matthews, on January 26, 1867, assigned the same to Isaac Farneman. Said assignments were in writing, and were recorded on the face of the record where said mortgage was recorded in the office of the recorder of Carroll county, both on January 26, 1867. On December 21, 1868, Isaac Farneman brought an action to foreclose said mortgage so assigned to him making parties defendant thereto only the widow and children of Daniel Austin. Said complaint did not contain a description of said real estate, but referred to the mortgage for a description thereof. A decree of foreclosure was rendered against said widow and children, which described the twenty-one acres of real estate conveyed by Thayer and wife to said Austin. Afterwards, by virtue of said decree, the sheriff of said county sold and...