Boyd v. Doty
| Decision Date | 13 December 1856 |
| Citation | 8 Ind. 338 |
| Parties | Boyd and Another v. Doty and Others |
| Court | Indiana Supreme Court |
From the Perry Circuit Court.
Reversed at the costs of the adult defendants, with instructions to proceed in accordance with this opinion.
W. T Otto and J. S. Davis, for appellants.
B Smith, for appellees [1].
Complaint by James and Frederick Boyd against Doty and others, to reform a decree of partition. Demurrer to the complaint, assigning for cause, that the facts were not sufficient to entitle the plaintiffs to relief, sustained. The Boyds appeal.
It appears that Wait Vaughan died seized of a tract of land in Perry county, leaving a widow and five children his heirs at law. In 1846, Sarah Vaughan, one of the heirs, filed her petition in the Probate Court for partition, making the other heirs parties. Upon this petition such proceedings were had that commissioners were appointed, partition made and reported, and the report confirmed. The tract of land partitioned lay in a triangular form on the Ohio river; the sectional lines containing, and the river subtending, the right angle. Commencing on the west side, the commissioners assigned the several shares in regular parallelograms. Thus, to Edward Vaughan, 45 acres on the west side, "being a piece of equal width from the river north to the east and west line of the land." To Prudence Vaughan, 45 acres next adjoining on the east. To the widow, Samantha Vaughan, 75 acres east and adjoining that of Prudence. To Sarah Vaughan Burnet 55 acres east of the latter. To Alfred Vaughan 50 acres east and adjoining Sarah's. And to Benjamin H. Vaughan 50 acres adjoining Alfred's.
Without going into minutia, the partition contemplates the tract of land as containing about 324 acres; and partition was made without survey.
In point of fact, when subsequently surveyed it was found to contain 376 acres. The partition was made in 1846; the survey disclosing the discrepancy in quantity was made, May, 1853. The land lies in this form:
(Image Omitted)
The 75 acres set off to the widow as dower, are not included subject to the dower in any of the shares of the five heirs.
Upon partition being made in 1846, the widow and heirs took possession of what they supposed to be their respective shares, and so occupied, by themselves, their assigns, or their heirs up to the survey of May, 1853.
In March, 1849, Alfred conveyed all his share in the estate to one Cavender; and a year after Cavender conveyed to Frederick Boyd, one of the appellants, not the interest he had purchased in the Vaughan estate, but the tract of land set off to Alfred Vaughan, containing 50 acres more or less.
In January, 1851, the administrator of Benjamin Vaughan conveyed to Cavender 18 acres off of the west side of the 50 acres set off to Benjamin. In 1853, Cavender conveyed these 18 acres to Frederick Boyd, who conveyed the undivided half of both lots to one Lee, and Lee to James Boyd, the other appellant.
It will thus be seen the complainants are the owners in fee of the 50 acres, more or less, set off to Alfred Vaughan, and of 18 acres on the west side of the 50 acres set off to Benjamin Vaughan,--provided the location of these tracts respectively can be ascertained. They lay no claim to any share in the land on which the dower was located. But they allege that by survey, the share of Alfred is now placed further west than was at first supposed; that the lessees of Benjamin Vaughan are intruders upon the land that was thought to belong to Alfred, of which Alfred took possession, and of which he delivered the possession to Cavender, on the sale to him. The prayer is for a survey of the land, for an enlargement of each share, on the basis of the original partition, so as to divide the surplus 56 acres among the present owners of the several tracts, and for possession of the land held by the lessees of Benjamin Vaughan. Also, a general prayer for relief.
As surveyed and platted in May, 1853, by the county surveyor, the respective shares are thus situated:
(Image Omitted)
By this survey and location, the surplus 56 acres is thrown on the east end of the tract. But by the report of the commissioners making the partition, approved and confirmed by the Court, the 50 acres set off by them to Benjamin is almost as expressly located on the east end of the tract as that to Edward is on the west end. Edward's share is described thus: "Commencing on the west end, we assign and set apart to Edward Vaughan 45 acres--it being a piece of equal width from the river north to the east and west line of the land."
The several shares are respectively described as adjoining each other, in the progress of the division eastward. That to Benjamin, is thus described: "We assign and set apart to Benjamin Vaughan the remaining 50 acres, it being on the east end of said tract and adjoining the aforesaid Alfred Vaughan, making a total of 320 acres." But this location on the east end is again unsettled by the language which locates Benjamin's adjoining Alfred's and by the erroneous impression that this was a division of the whole tract.
The facts stated clearly make such an equitable case as ent...
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