Bowen v. Swander

• Decision Date: 01 November 1889
• Citation: 121 Ind. 164,22 N.E. 725
• Parties: Bowen v. Swander et al.
• Court: Indiana Supreme Court

121 Ind. 164

22 N.E. 725

Bowen

v.Swander et al.¹

Supreme Court of Indiana.

Nov. 1, 1889.

Appeal from circuit court, Carroll county; Joseph C. Suit, Judge pro tem.

Suit by Edmond Swander, guardian of Leah Durang, against Abner H. Bowen, Henry H. Fisher, and Florinda Smaltz, for the partition of land belonging to the estate of Catherine Murphy, deceased. The complaint alleged that the plaintiff owned an undivided interest in the land to be partitioned; that he was tenant in common with defendants; and that the defendants claimed some interest in the land, of the nature and extent of which the plaintiff was not advised. Decree of partition. Defendant Bowen appeals.

Judson Applegate and Charles R. Pollard, for appellant. R. C. Pollard, L. D. Boyd, John C. O'Dell, and M. A. Ryan, for appellees.

Berkshire, J.

This was an action in partition, to quiet title, and for an accounting. The appellee Swander was the plaintiff below. The appellee Smaltz was one of the defendants, as was the appellant. There was another defendant, Henry H. Fisher, who was defaulted. Mrs. Smaltz filed a cross-complaint, substantially the same in its averments as the complaint. The appellant filed a cross-complaint, averring that he was the owner of the whole of the real estate, and asking that his title be quieted. Issue was joined upon the complaint and each of the cross-complaints, and the cause submitted to the court, with a request for a special finding. The court returned a special finding; and, the conclusions of law being favorable to the appellees, the appellant excepted thereto. He then filed a motion for a new trial, which the court overruled; and he reserved an exception. He then moved in arrest of judgment, which motion the court overruled; and he excepted. He then moved that a venire de novo be awarded, which motion was overruled by the court, and he saved an exception; and the court then rendered judgment for the appellees. The errors assigned are as follows: “ First, the court erred in overruling the appellant's motion for a new trial; second, the court erred in its conclusions of law on the finding; third, the court erred in overruling appellant's motion for a venire de novo; fourth, the court erred in overruling appellant's motion in arrest of judgment; fifth, the complaint does not state facts sufficient to constitute a cause of action; sixth, the cross-complaint of Florinda Smaltz does not state facts sufficient to constitute a cause of action.”

Whether the complaint or the cross-complaint of Mrs. Smaltz would be good as against a demurrer, is a question not before us. These pleadings are clearly sufficient, as against a motion in arrest of judgment, and sufficiently good when questioned for the first time by the assignment of error in this court. Peters v. Banta, ante, 95, (present term;) Falley v. Gribling, ante, 723, (present term;) Laverty v. State, 109 Ind. 217, 9 N. E. Rep. 774; Railroad Co. v. Kreiger, 90 Ind. 380;Smith v. Smith, 106 Ind. 43, 5 N. E. Rep. 411.

No objection was made to Judge Suit's appointment, nor to his authority to act as judge pro tempore at any stage of the proceedings. In the case of Cargar v. Fee, 21 N. E. Rep. 1080, the judge who delivered the opinion said: “An appointment of a judge pro tempore, although not regularly made, constitutes the appointee a judge de facto, and the acts of a judge de facto cannot be overthrown in a collateral attack, nor, indeed, in a direct attack, unless the objection is promptly made.” Smurr v. State, 105 Ind. 125, 4 N. E. Rep. 445; Schlungger v. State, 113 Ind. 295, 15 N. E. Rep. 269; Bartley v. Phillips, 114 Ind. 189, 16 N. E. Rep. 508; Greenwood v. State, 116 Ind. 485, 19 N. E. Rep. 333; Littleton v. Smith, 21 N. E. Rep. 886; Hayes v. Sykes, Id. 1081.

The court did not err in overruling the motion for a venire de novo. The special finding was not defective in form; and for no other cause will a writ of that character be awarded.

This leaves but the first and second alleged errors undisposed of, and these we will consider together. The action was well brought in the name of the guardian. Section 1194, Rev. St. 1881, reads thus: “In all proceedings under this act, [partition,] guardians may act for their wards, as their wards might have acted, being of age.” Section 2542 reads as follows: “The guardian of any minor may join in and assent to a partition of the real estate of such minor, under the direction of the court, upon a petition for partition.” These statutory provisions clearly authorized the guardian to institute the action, and prosecute it in his own name. Bundy v. Hall, 60 Ind. 177;Miller v. Smith, 98 Ind. 226.

That the testatrix, Catherine Murphy, died the owner of the real estate involved in this litigation, there can be no question. She, and those under whom she claimed, had at the time of her death been in the continuous possession of said real estate, under claim of ownership, for over 30 years. This gave her a title, as good as though she had received a patent directly from the government. It is not, and never has been, the law of this state that there must be a color of title before an adverse possession will ripen into a title. Collett v. Board, 21 N. E. Rep. 329; Roots v. Beck, 109 Ind. 472, 9 N. E. Rep. 698; Riggs v. Riley, 113 Ind. 208, 15 N. E. Rep. 253; Law v. Smith, 4 Ind. 56; O'Donahue v. Creagor, 20 N. E. Rep. 267; Bell v. Longworth, 6 Ind. 273. It is true that the conveyances to two of the testatrix's remote grantors named different lands than those here in controversy, and that their reformation is not asked for in this action; but the deeds, and the possession under them, characterized the possession as one that was hostile to all the world, and which in time would ripen into a title. But, if it were conceded that the title of the testatrix was not a good title, it would not help the appellant in this case. The testatrix was the common source of title. It was the foundation of the appellant's title, under which he went into possession. It is well settled that, where the parties claim through a common source of title, it is prima facie sufficient to prove the derivation of title from the common grantor, without proving his title. 2 Greenl. Ev. § 307; Cronin v. Gore, 38 Mich. 381;Miller v. Hardin, 64 Mo. 545;Spect v. Gregg, 51 Cal. 198;Hartshorn v. Dawson, 79 Ill. 108;Charles v. Patch, 87 Mo. 451.

The claim of title made by the appellant under the sale for taxes is unavailing. It is well-settled law in this state that one who makes claim of ownership to real estate under a sale for delinquent taxes must establish affirmatively that all the requirements of the law, from the listing of the property to the execution of the deed, were strictly complied with. This the appellant failed to do. He introduced no evidence, except his deed. Steeple v. Downing, 60 Ind. 478;Millikan v. Patterson, 91 Ind. 515;Haynes v. Cox, 118 Ind. 184, 20 N. E. Rep. 758; Kraus v. Montgomery, 114 Ind. 103, 16 N. E. Rep. 153.

This is not an action for possession, and therefore the five-years period of limitation, which the appellant insists upon, does not apply. English v. Powell, 21 N. E. Rep. 458; Farrar v. Clark, 85 Ind. 449;Bowen v. Striker, 87 Ind. 317;Gabe v. Root, 93 Ind. 256.

We do not care to set out the antenuptial agreement between Catherine Murphy, the testatrix, and Alexander B. Murphy, who afterwards became her husband. It is sufficient to say that the agreement was based upon a valuable consideration, and that by its terms each party thereto deprived himself and herself of all rights under the law, as widower or widow, in the property of the other; and that such was the intention of the parties there can be no question. See McNutt v. McNutt, 116 Ind. 545, 19 N. E. Rep. 115. If the contention of the appellant is correct, then the antenuptial agreement served no useful purpose whatever. But, under the will of the testatrix, the husband was given a life-estate in the whole of the real estate; and there is nothing in the record to show that down to the date of his death he ever set up any claim to the real estate, other than as provided in the will. And, this being so, we must conclude that he accepted the provisions of the will; and, if he was content therewith, no one else could interpose in his behalf.

The complaint and the cross-complaint of Florinda Smaltz made Henry H. Fisher a party defendant. He made default; and the court found that he had no interest in the real estate in controversy, and that the appellant and the appellees were the owners thereof, and tenants in common,-each owning an undivided one-third. Counsel for the appellant insist that this was reversible error. Henry H. Fisher is not here complaining, and is concluded by the judgment. We cannot see, therefore, how the appellant is prejudiced by this action of the court, as it has the effect to increase his interest in the estate, and in the rents and profits for which he is adjudged to account. But, if we are wrong in our conclusion, it will work no prejudice to the appellant, as the question is not presented in the record for our consideration.

The next, and most important, question for our consideration is, did the appellees acquire title to the real estate by the will of Catherine Murphy? The will reads as follows: “I, Catherine A. Murphy, do make and publish this, my last will and testament. I give and devise to my beloved husband, A. B. Murphy, my farm, on which we now live, situated in Carroll county, state of Indiana, containing eighty acres, during his natural life, and all my personal property and household goods, in fee, to dispose of as he may see fit, except one bed and bedding; to my sister, Leah Durang, said bed, containing one straw tick, feather bed, two quilts, two pillows, one sheet, and a bolster case, one coverlid; and I devise to John Franklin Fisher one bed, said to contain one straw tick, one feather bed, one quilt, and two coverlids, one...