Benbow v. Studebaker
| Decision Date | 26 November 1912 |
| Docket Number | 7,964 |
| Citation | 99 N.E. 1033,51 Ind.App. 450 |
| Parties | BENBOW ET AL. v. STUDEBAKER ET AL |
| Court | Indiana Appellate Court |
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by Herbert L. Benbow and another against Benjamin Studebaker and others. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
James Bingham, Jesse R. Long, William F. White and William T Haymond, for appellants.
W. A Thompson and R. W. Sprague, for appellees.
This action was commenced by appellants against appellees, to quiet title to certain real estate in Delaware county Indiana, and to set aside a former judgment made and rendered in partition proceedings, in which the title to said real estate was quieted as against appellants herein.
The court sustained appellees' several demurrers to the complaint, and appellants declining to plead over, and electing to abide by their complaint and exception to the ruling of the court in sustaining the demurrer thereto, judgment was rendered against them for costs. The only question presented for review in this court is the sufficiency of the complaint to state a cause of action.
The complaint is long, and sets out a complete copy of the pleadings and order-book entries shown in said former proceeding. In brief, it is averred that Joseph Gerrard was on August 25, 1871, the owner in fee simple of 180 acres of land in Delaware county, Indiana, and continued to be the owner thereof until the time of his death, which occurred on September 27, 1871; that on said August 25, Joseph Gerard executed his last will and testament, item two of which is as follows:
"I will, devise and bequeath to my said wife my home farm (describing the same) during her natural life, and at her death, I will, devise and bequeath said real estate to my five children by her, to wit: Minerva Alice, William Lincoln, Lora Delphus, George W. Morton and Riley, in equal proportions, and if any of those shall be dead, then I will, devise and bequeath said realty to the surviving ones of said five children."
That testator was survived by his widow and the five children, named in item two of his will; that said widow died August 26, 1891, and prior to the death of said widow, testator's daughters Lora Delphus and Minerva Alice died; that Lora Delphus was intermarried with John C. F. Benbow, and left surviving, as her only heirs, her said husband and appellant Herbert L. Benbow, her son; that Minerva Alice was intermarried with Frank F. Prigg, and left surviving as her only heirs her husband and appellant Edna May Prigg, her daughter; that on August 26, 1891, appellants were minors and were nonresidents of the State of Indiana; that on said day John C. F. Benbow filed his complaint in the Delaware Circuit Court for the partition of the real estate herein described, alleging that he was the owner of an undivided one-fifteenth part thereof, and that defendants named in the complaint, to wit, William L. Gerrard, George M. Gerrard, Riley Gerrard, Frank F. Prigg, Edna May Prigg and Herbert L. Benbow, were the owners of the remainder thereof; that the complaint was in the ordinary form for partition, simply averring that the plaintiff and defendants were the owners and tenants in common of the real estate described therein, and asking that the interest of the plaintiff be set apart to him. With the complaint was filed an affidavit, alleging, among other things, that the action was one to enforce the partition of real estate, and that Herbert L. Benbow and Edna May Prigg were necessary parties thereto, and were nonresidents of the State of Indiana; that notice was given said parties by publication and proper proof thereof made; that appellants were called in open court and defaulted, and it being made to appear to the court that they were minors, a guardian ad litem was appointed for them, who qualified, and filed an answer in general denial; that with said answer, the guardian ad litem attempted to file a cross-complaint for and on behalf of said minors, to which cross-complaint the plaintiff and codefendants therein were made parties defendant, and in which said guardian ad litem sought to quiet title to an undivided two-fifteenths interest in said real estate in each of said minors; that William L., George M. and Riley Gerrard filed a demurrer to said cross-complaint, which demurrer was overruled by the court; that said Gerrards then filed their cross-complaint in said cause, making plaintiff John C. F. Benbow, Frank F. Prigg and appellants herein parties defendant thereto, alleging facts already detailed as to the parties, and the source of title, except in item two of the will following the words "in equal proportions, and if any of them shall be dead" three words were added, to wit, "at her death", and were alleged to have been and to be in the will of testator in addition to the words of said item two as shown by the record.
It is further alleged in said cross-complaint that the clerk of the court did not correctly copy said will into the record, but by mistake and inadvertence omitted said three words from said item two. It is also alleged that at the death of the testator his wife and said five children named in item two were all living, but that the daughters Lora Delphus and Minerva Alice each died before the death of the widow. The cross-complainants ask for a correction of the record, that their title to the real estate be forever quieted and set at rest, and that defendants to said cross-complaint be adjudged to have no title therein.
There was no summons, publication or process of any kind issued on said cross-complaint, and no service of any kind was ever made or had on appellants or either of them on said cross-complaint, "all of which affirmatively appears from the record in said cause;" that appellants were called in open court and defaulted, and no guardian ad litem was appointed or qualified, but after the filing of said cross-complaint, and after the attempted default of appellants herein, the guardian ad litem, who appeared for appellants to the complaint of John C. F. Benbow, also appeared to the cross-complaint of the Gerrards, and filed separate answers in two paragraphs, the first in denial and the second alleging source of title to be as the heirs of their respective mothers through the will of Joseph Gerrard, deceased.
The court found against plaintiff Herbert L. Benbow on his complaint and in favor of defendants William L. Riley and George M. Gerrard on said complaint. The court found against the minor defendants, appellants herein, on their cross-complaint, and in favor of said Gerrards, and the court also found for the Gerrards on their cross-complaint, that they were the owners in fee simple of the real estate described therein, and against all the defendants thereto, including appellants herein, and rendered judgment quieting their title to said real estate. It is also averred in the complaint that by subsequent conveyances certain appellees herein became the owners of the interest of said Gerrards in said real estate, and other appellees became the holders of liens thereon; that appellants have at no time conveyed or in any manner disposed of their interest in said real estate or any part thereof; that the will of Joseph Gerrard as first alleged and set forth was the will of said testator, and remained in full force and unrevoked at his death; that the proceedings, finding and judgment in said action for partition, in which John C. F. Benbow was plaintiff, were invalid and of no force and effect, except in so far as the same related to the partition of said real estate, and not otherwise; that by virtue of the will of Joseph Gerrard and by inheritance from the respective mother, each appellant is the owner of an undivided two-fifteenths of said real estate, and entitled to have his title thereto quieted and forever set at rest.
Appellants' reliance for a reversal of the judgment in this case may be summed up in the following propositions: (1) That as appellants were minor defendants in the original action for partition, and were brought into court by publication to answer a complaint which did not seek to settle any question of title to the real estate, but only to allot to the plaintiff his interest therein, and as there was no service of notice to them on the cross-complaint of the Gerrards to quiet title, appellants were only in court for the purposes of the original complaint. (2) That although the guardian ad litem appointed by the court in the original action filed a cross-complaint, in which he sought to quiet the title in each appellant in two-fifteenths of the real estate in question, such guardian ad litem had no authority to file a cross-complaint, and appellants cannot be bound thereby. (3) That the guardian ad litem could not appear for the appellants to the cross-complaint of the Gerrards in said former action without notice to them of the filing of such cross-complaint. (4) That the title of the real estate in question was not as to appellants, put in issue, and the decree of the court quieting the title to said real estate in the Gerrards and against appellants was absolutely void. (5) That by virtue of the will of Joseph Gerrard, the mothers of appellants, on the death of the testator, each became the owner in fee simple of an undivided one-fifth part of said real estate, subject to the life estate of the widow of said testator therein. This action is clearly a collateral attack on the judgment rendered in the action brought by John C. F. Benbow in 1891, and if the judgment was rendered against appellants in that action on their cross-complaint filed without right or authority by their guardian ad litem, or on the cross-complaint of the...
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