Clark v. Hillis

Decision Date10 May 1893
PartiesCLARK et al. v. HILLIS.
CourtIndiana Supreme Court


Appeal from circuit court, Clinton county.

Action by James M. Clark and others against Benjamin F. Hillis. Defendant had judgment, and plaintiffs appeal. Reversed in part only.

J. N. Sims & Son, for appellants. P. W. Gard, for appellee.


On the 28th day of July, 1853, James Clark was unmarried, and then owned an 80-acre tract of land in Clinton county, of which he made conveyance to his mother, Catherine Clark, a widow. The deed of conveyance contains the following description of the estate in said lands conveyed: “To have and to hold unto the said Catherine, for the consideration aforesaid, during the term of her natural life, and after her death to revert to me and my heirs.” Thereafter said James intermarried with Lorinda Collum, and by her he had the following children: Amazia, James M., Malinda, Dulcenia A., Helen I., and Eliza J. Later said James and wife were divorced, and still later said James died intestate in said county. After the death of said James, said Amazia departed this life intestate, with no other heirs than his mother and his said brother and sisters. On the 18th day of February, 1871, the administrator of the estate of said James petitioned the proper court to sell said lands, subject to a life estate in said Catherine Clark, for the payment of the debts of said James, deceased. Said petition set out the names of the surviving children of said James as Amazia, Malinda, Eliza Jane, Dulcenia Alice, James, Minerva, and James Marion Clark, and - - -Clark, including Jane Minerva and - - -Clark, not his children, and omitting Helen I., his daughter. The record recites that at a subsequent term of court the administrator made proof of the publication and posting of notices of the pendency of said petition. Appraisers were appointed and sworn, and reported an appraisement of said lands at $1,600. The administrator was ordered to file an additional bond in double the appraised value of said lands, and the record recites the filing and approval by the court of such bond, with Jeremiah K. Clark as surety. Thereupon the court ordered a private sale of said lands without notice. At a subsequent term of court the administrator reported under oath that he had given notice of the time, the terms, and lands to be sold by publication of three weeks successively in a named weekly newspaper of said county, and by posting printed notices in five public places in said county, three of which were in the township where said lands were situated; and that pursuant thereto he sold said lands to Andreville Hillis for the appraised value. The sale was approved, the deed executed and confirmed, and the purchase money paid. Catherine Clark died October 21, 1887. The appellants, the five living children of said James Clark, and said Lorinda Clark, mother of said children, seek to recover said lands, and to quiet the title thereto in themselves. The appellee claims under Andreville Hillis, and succeeded in the lower court. No question is properly made in this court as to the sufficiency of the pleading, but the errors assigned are upon the overruling of the joint motion of all of the appellants for a new trial, and of the separate motion for a new trial by Helen I. Clark.

It is contended by the appellants that James Clark, at his death, held no title, legal or equitable, in said lands, subject to sale for the payment of his debts; and that the sale by the administrator was void, even, if said James held an interest subject to sale for the payment of his debts. The argument upon the first contention is, as we understand it, that the deed by James to his mother suspended the fee during her lifetime, and, after vesting a life estate in her, conferred such remainder at her death upon said James and his heirs; that the death of James before the extinction of the life estate took him out of the line of the “reversion,” and left only such of his “heirs” as survived his mother to take the “reversion.” Numerous authorities are cited as supporting this argument, but we believe them to be inapplicable to the necessary construction of the deed in question. The deed conferred no title on James. He held the fullest title known to the law, and from it he carved a life estate, and conferred that upon his mother. He had no “heirs,” and upon the expiration of the life estate nothing remained to revert, because nothing more had passed. The remainder never passed from James, but confirmed in him until his death, when, it is found, he had heirs to inherit that remainder, and hold it subject to said life estate, and subject to the payment of the debts of said James. There is little room for the contention that such interest of James was a “contingent remainder.” The case of Stephens v. Evans, 30 Ind. 39, cited by counsel, defines a contingent remainder as “an interest in remainder, limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event.” If the deed had been from another to Catherine for life, with the remainder over to James, expressed in the form we find it in the deed of James, we could doubt its construction as conferring upon James a contingent remainder. There are no expressions of contingency in the deed. It has often been held that a bequest to one “if living,” means if living during the life of the testator. But here the estate parted with is but a life estate, and the remainder in fee continues in James, and is dependent upon no contingency. The expression, “to revert to me and my heirs,” is not a granting term, and cannot, therefore, creates a limitation. The law favors vested remainders, and ignores the rule that the fee may stand in abeyance or be suspended. Amos v. Amos, 117 Ind. 37, 19 N. E. Rep. 543. In Boone on Real Property (section 18) it is said that the law does not permit estates to be in abeyance, except in cases of necessity, and it has been said that the doctrine of a fee in abeyance is not now the law of real property. Sheffield v. Ratcliffe, Hob. 338; Bucksport v. Spofford, 12 Me. 492; Donovan v. Pitcher, 53 Ala. 411; Fearne, Rem. 351, 361; Williams, Real Prop. 256; Sands v. Lynham, 27 Grat. 291;Moores v. White, 6 Johns. Ch. 360, 365.

The validity of the sale by the administrator is attacked upon the following grounds: (1) The name of Helen I. Clark was not stated in the petition for an order of sale. (2) The sale was ordered without notice, the land being valued at $1,600. (3) That no additional bond is on file. (4) All of the appellants except Lorinda Clark were minors when the order was made. (5) No guardian ad litem was appointed for the minors. (6) No notice was given of the pendency of the petition. (7) Appellants were not called, and defaulted in said proceeding to sell. (8) There was no legal appraisement.

We have stated the substance of all of the evidence in the cause, which consists of agreed facts and the record of the proceedings to sell by said administrator. From the record of the proceedings to sell Helen I. Clark is not named as an heir of said James, but the other children are named, and must be treated as parties. If the record were silent on the subject of notice to those who were parties to the proceeding, it would be presumed that such notice had been given. Doe v. Harvey, 3 Ind. 104;Gerrard v Johnson, 12 Ind. 636;Hawkins v. Ragan, 20 Ind. 193;Abdil v. Abdil, 33 Ind. 460;Ayers v. Harshman, 66 Ind. 291;Crane v. Kimmer, 77 Ind. 215;Horner v. Doe, 1 Ind. 130;Bank v. Ault, 102 Ind. 322, 1 N. E. Rep. 562. Here it appears expressly that notice was given by publication and posting of the pendency of the proceeding. The absence from the files of the notice so found will not defeat the presumption that it was the proper notice. If the infirmity for which a judgment is attacked donor appear from the face of the record of a court of competent jurisdiction, the judgment is not void. Palmerton v. Hoop, 131 Ind. 23, 30 N. E. Rep. 874; Earle v. Earle, 91 Ind. 27. The absence from the files of the proof of notice of sale should not affect the validity of the sale, for the reasons stated as to the notice of the pendency of the proceeding. But it is insisted that the court ordered the sale without notice, when, from the appraised value of the land, notice was required by law. The statute did not require the order of sale to direct the giving or withholding of notice, and, while notice was required, and while the court did the unnecessary act of...

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