Clem v. Durham
| Decision Date | 02 June 1860 |
| Citation | 14 Ind. 263 |
| Parties | Clem v. Durham and Others |
| Court | Indiana Supreme Court |
ERROR to the Vigo Probate Court.
The decree is reversed at the costs of the adult heirs of George Clem, other than the said John, and the cause remanded to the Court of Common Pleas of Vigo county, with instructions to proceed in accordance with this opinion.
J. P Usher, for appellant.
S. B Gookins, for appellees.
Petition, or bill in chancery, for a partition amongst his heirs, of the real estate of George Clem, deceased. The bill was filed by George Durham, and his wife Melinda (formerly Melinda Clem), against the other heirs of the deceased, and Mary Clem, his widow. Dower was assigned to the widow, and partition decreed. John Clem, one of the defendants prosecutes his writ of error. The proceedings were concluded whilst the old Probate Court was in existence, and the record was filed in this Court in 1852. There are alleged errors and irregularities in the proceedings, in permitting the complainants to amend their bill after having taken a decree by default as against the adult defendants, the infant defendants having answered by their guardian ad litem, and after commissioners had been appointed to make partition, who had made their report to the Court, which report had been accepted by the Court; and in then permitting any question to be raised as to advancements. We deem it entirely unnecessary, however, to pass upon any of these questions, as there is another involved which is decisive of the whole case. The bill, as amended and finally acted upon, charges that the plaintiff in error had been advanced by his father, in his lifetime, more than his share in the estate of the deceased, by the conveyance to him of certain real estate. John, in his answer, denied that the land mentioned was given him by way of advancement, but alleges that he paid the full value therefor.
The question of advancement was referred to a master, who reported adversely to the plaintiff in error, but as no action was had upon the report, and as the decree which was finally passed was not based upon it, it need not be here further noticed.
The issue thus made by the allegations in the bill of an advancement to the plaintiff in error and his denial thereof in the answer was submitted to a jury for trial and a verdict returned thereupon for the defendant, John. As the record is somewhat confused in respect to the question submitted to the jury, we here set out the order of the Court by which the question was ordered to be submitted to a jury. The record recites that &c.
The record shows that the complainants afterwards filed a statement in writing of the alleged advancement, or in the language of the record, "their issue or allegations for an issue in law." To this the plaintiff in error filed an answer setting up that the lands mentioned were conveyed to him by the deceased in consideration of 300 dollars and of natural love and affection; and that after the death of the deceased, he fully accounted with his administrators for the full value of the lands thus conveyed to him, and paid them the residue of the full value thereof, a part thereof having been paid to the deceased in his lifetime, and that the administrators distributed the money so paid them by the said John among the heirs of said deceased, the present parties to this suit, who received the same with a knowledge of all the facts. The complainants replied by way of denial, and "put themselves upon the country," and the respondent did "the like."
After the verdict was returned, the complaints moved to set it aside and grant a new trial of the issue, but the Court over-overruled their motion. It appears that when the issue was tried by the jury, the Hon. A. Wilkins was judge of the Court, and that he had gone out of office when the motion for a new trial was made. The complainants moved for a "rule" against Judge Wilkins that he furnish the Court now here his notes of the proceedings and evidence had before him on the trial, which was granted. The rule being served on Judge Wilkins, he returned that he had no minutes of the evidence and proceedings had before him on said trial, and had not sufficient recollection of the evidence to set the same out with certainty.
A bill of exceptions filed in the cause, shows that certain documents and depositions were read to the jury on the trial of the issue; but on the motion for a new trial, it did not appear "what facts were proved by parol, or otherwise, at the trial; nor had the present judge of this Court any knowledge of the evidence that was heard and understood before the jury, other than the record shows."
After the motion for a new trial was overruled, the cause was set down for a hearing, and the Court found, amongst other things, that said John Clem was advanced by the deceased in his lifetime, &c., and a decree was entered dividing the lands of the deceased amongst his other heirs, excepting John, who received nothing as heir to his father, but he received a portion as heir to a brother and sister, who died since the decease of his father.
This cause has once before been decided by this Court, but a rehearing was granted. In the former opinion of the Court, the following passage occurs:
[1].
The question is discussed in the briefs of counsel, whether this is a proceeding at law or in chancery; for if it be a proceeding at law, the verdict is conclusive. The law in force when these proceedings were had, provided that lands might be divided "by writ of partition at common law, or by proceedings in chancery, or in the manner provided for in this article." R. S. 1843, p. 811.
Proceedings by petition under the statute, and by bill in chancery, were so similar, that it may not always have been easy to determine their character in this respect; but we are inclined to regard this as being a chancery proceeding, as distinguished from a proceeding at law. This being the case, the question again arises whether the Court could decree against the verdict of the jury without having first set it aside. The counsel for the defendants in error, in his brief filed on the rehearing, says:
There are authorities, undoubtedly, to the effect that the chancellor is at liberty, if he pleases, to treat the verdict as a mere nullity, and to decide against it, or to send it back to another jury. 3 Greenl. Ev. § 261, and authorities there cited. Whether this could be done in a cause where the chancellor was not apprised what evidence was introduced upon the trial of the issue, and therefore could not determine whether the verdict was in accordance with, or contrary to the evidence thus introduced, is, perhaps, not entirely clear from the authorities. Such a course is certainly not countenanced by the remarks of the Lord Chancellor in Bootle v. Blundell, 19 Ves. 494, 500. It was there said that "upon an issue directed, this Court reserves to itself the review of all that passes at law; and one principle on which the motion for a new trial is made here, and not to the Court of law, is, that this Court regards the judge's report with a view to determine whether the information collected before the jury, together with that which appears upon the record in this Court, is sufficient to enable it to proceed satisfactorily," &c.
But we need not determine what was the correct chancery practice in this respect, as the question under consideration was governed by statute. The following provisions are found in the act organizing the Probate Court. R. S. 1843, p. 666:
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Snell v. Harrison
...Equity, side p. 376. In proportion to the duty of a judge in directing an issue is the obligation to be governed by the verdict. Clem v. Durham, 14 Ind. 263; 3 Greenl. on Ev. (3 Ed.) sec. 266. The decree was clearly void, as it included a general judgment for costs against all the defendant......
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