Armstrong v. Hufty

• Court: Indiana Supreme Court
• Writing for the Court: MONKS
• Citation: Armstrong v. Hufty, 156 Ind. 606, 55 N.E. 443 (Ind. 1899)
• Decision Date: 28 November 1899
• Parties: ARMSTRONG et al. v. HUFTY.

156 Ind. 606

55 N.E. 443

ARMSTRONG et al.

v.HUFTY.¹

Supreme Court of Indiana.

Nov. 28, 1899.

Appeal from circuit court, Carroll county; Truman F. Palmer, Judge.

Action by Jasper J. Hufty against Dora Armstrong and others. From a judgment for plaintiff, certain defendants appeal. Modified.

Jesse C. Moore, for appellants. Smith & Julien, for appellee.

MONKS, J.

Appellee, Jasper J. Hufty, brought this action against appellants to quiet his title to three tracts of real estate in Carroll county, Ind. The first tract contained 80 acres, the second 49.61 acres, and the third 4 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 W. Bowen filed a cross complaint against his co-appellants and appellee to quiet the 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. The 80-acre tract was correctly described. The 49.61-acre tract was described as follows: “49.61 acres off of the north end of the fractional north half of the northwest quarter of section 28, in township 25 north, of range 3 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 21, in said township 25 north, of range three west, running thence north 54 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 seised, and being in the southeast quarter of said section 21.” Said petition asked an order to sell said real estate to make assets to pay the debts of her estate. Due 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 administrator 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 49.61 acres and the 4 acres as they are described in appellees' complaint in this cause. Said lands and the 80 acres described in the petition were the only lands owned by said Caroline Sampson in said sections 21 and 28 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 49.61 and 4 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 the 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 21 and 28, 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 11 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; and 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, Ind.: Beginning at a stake on the south line of section 21, township 25 N. of range 3 W., 80 poles west of the southeast corner of said section; thence W. 60 poles to a stake; thence N. 58 poles to the center of the road leading to Pittsburgh; thence E., along said road, 60 poles; thence S. 54 poles to the place of beginning,-containing 21 acres,-which deed was duly recorded December 26, 1861. 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 “4 acres off of the east side of the 21 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 21 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 conveyed said 21 acres of real estate to Abner H. Bowen. At the time said suit was commenced, and when said decree was rendered, Peter Striker and Abigail Striker were in possession of the four acres of land in controversy in this case, and claimed to own the same under their deed from said Eli Downs and wife, and they were not made parties to said proceeding to foreclose said mortgage. On October 11, 1872, Sophia Austin, the widow of Daniel Austin, executed a deed conveying to said Bowen all the real estate described in said...