Champ v. Kendrick

Decision Date08 March 1892
Citation30 N.E. 787,130 Ind. 549
PartiesCHAMP et al. v. KENDRICK.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Fulton county; J. D. MCLAREN, Special Judge.

Action by Francis K. Kendrick, as trustee of Joel R. Townsend, against Alice Champ and others, to restrain them from entering and taking possession of certain land. From a judgment overruling defendants' demurrer, and granting a permanent injunction, defendants appeal. Affirmed.

Sidney Keith, for appellants. Holman & Stephenson and Enoch Myers, for appellee.

MILLER, J.

By his last will and testament, Joel Townsend devised to Joel R. Townsend certain real estate, for and during his natural life. The life estate was given upon the express consideration that the devisee should not sell or dispose of his interest in the land by a sale in gross, or hold and enjoy the same in any other manner than by renting the same out from year to year, and receiving the rents. The will directed that his executor, after closing up the trust and making settlement with the court, should not be finally discharged, but should continue to act as a trustee upon the contingency that Joel R. should at any time fail to keep the taxes upon the lands devised to him fully and promptly paid, or should attempt to sell the same in gross, contrary to the conditions of the devise. Then, or in either case, the trustee should take possession of the lands advertised as delinquent, or attempted to be sold, and rent the same out upon the best terms he could obtain, and, after paying such delinquent taxes, needed repairs, and expenses, turn over the residue to the devisee. It was further provided that the devisee might at any time be reinstated in his original condition, by refunding to such trustee the money expended for taxes and other expenses incident to such delinquency. This action was instituted by the appellee, as trustee, against one Joseph Champ. The complaint alleged that the plaintiff had been appointed by the Fulton circuit court as trustee under the will of Joel Townsend, and that he had qualified and was acting as such trustee; that said Joel R. Townsend, contrary to the terms of the will of Joel Townsend, had sold in gross and attempted to convey the land devised to him; that he also had failed to keep the taxes on the land fully and promptly paid, but, on the contrary, had permitted the land to be sold for taxes in February, 1885; that the lands had not been redeemed from the sale, and that the plaintiff has in his hands no means of said trust with which to pay the taxes, and no way of acquiring such means, except by renting out the land as provided in said will; that the land is in the possession of one Jacob Stanton, who holds under a lease which will expire on the 10th day of March, 1886, at which time he will vacate the premises; that the defendant has moved a load of corn and some other goods on to said land, and says that he will move to and take possession or the farm as soon as it is vacated by the tenant in possession. The complaint avers that the defendant is wholly insolvent, worthless, and unscrupulous; that if he gets possession it will be impossible for the plaintiff to discharge his duty, under the will of Joel Townsend, in carrying out its provisions; that, said Champ being worthless, he could recover nothing from him in the way of damages; and that, if he is permitted to go into possession of said land, great and irreparable injury and damage to the interests will be incurred. The prayer for relief is for a restraining order prohibiting the defendant from taking possession of the land, or in any way interfering with the trust, and that upon final hearing the injunction be made perpetual.

During the pendency of the action the defendant Joseph Champ died, and the appellants, who are his children and heirs, were substituted as defendants. The defendants being minors, a guardian ad litem was appointed for them. A motion was made by the guardian ad litem to dismiss the action, for the reason, as alleged in the motion, “that there is now pending in this court another action, No. 3,875, in which it is sought to have settled the only question which can be adjudicated in this cause.” This motion the court very properly overruled. The matter sought to be raised by the motion must be pleaded in an answer of abatement, duly verified. 1 Work. Pr. (Ind.) §§ 562, 563. The guardian ad litem demurred to the complaint, his demurrer was overruled, and, refusing to answer further, final judgment was rendered in favor of the plaintiff, making the injunction perpetual.

The sufficiency of the complaint is the only remaining question before us for decision. The appellants insist that the complaint is bad for want of sufficient verification, the affidavit stating that “the matters and things set forth in the foregoing complaint are true, as he is informed and believes.” This verification was good. An affidavit sworn to upon the...

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9 cases
  • First Nat. Bank of Ft. Wayne v. Savin
    • United States
    • Indiana Appellate Court
    • 14 Marzo 1911
    ... ... See, also, Champ v. Kendrick, Tr., 130 Ind. 549, 554, 30 N. E. 635; High on Injunctions (3d Ed.) 717.(1) To have alleged the insolvency of the appellant in the case ... ...
  • First National Bank v. Savin
    • United States
    • Indiana Appellate Court
    • 14 Marzo 1911
    ...to the ends of justice and its prompt administration as the remedy in equity. Bishop v. Moorman (1884), 98 Ind. 1, 49 Am. Rep. 731; Champ v. Kendrick; American Plate Glass Co. v. Nicoson (1905), 34 Ind.App. 643, 73 N.E. 625; Meyer v. Town of Boonville (1904), 162 Ind. 165, 70 N.E. 146; Xeni......
  • Koch v. Dist. Court of Des Moines Cnty.
    • United States
    • Iowa Supreme Court
    • 8 Febrero 1911
    ...generally announced is that an affidavit sworn to on the belief of a party is equivalent to swearing that it is true. Champ v. Kendrick, 130 Ind. 549, 30 N. E. 787;State v. Ellison, 14 Ind. 380;Simpkins v. Malatt, 9 Ind. 543;Harris v. Heberton, 6 Miss. 575;Osprey v. Jenkins, 9 Mo. 643;Pratt......
  • Koch v. District Court of Des Moines County
    • United States
    • Iowa Supreme Court
    • 8 Febrero 1911
    ... ... announced is that an affidavit sworn to on the belief of a ... party is equivalent to swearing that it is true. Champ v ... Kendrick, 130 Ind. 549 (30 N.E. 787); State v ... Ellison, 14 Ind. 380; Simpkins v. Malatt, 9 ... Ind. 543; Harris v. Heberton, 6 Miss ... ...
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