Crater v. Crater

• Decision Date: 27 April 1889
• Citation: 118 Ind. 521,21 N.E. 290
• Parties: Crater v. Crater.
• Court: Indiana Supreme Court

118 Ind. 521

21 N.E. 290

Crater

v.Crater.

Supreme Court of Indiana.

April 27, 1889.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

Ejectment by Jane Crater against John Crater. Defendant appeals.Henry C. Dodge, for appellant. J. M. Vanfleet, for appellee.

Coffey, J.

This was an action by the appellee against the appellant in the court below, to recover the possession of the land described in the complaint. The complaint does not differ from the ordinary complaint in ejectment, except in that it discloses the fact that appellant and appellee are husband and wife, living separate and apart from each other. The appellant answered the complaint by a general denial. He also filed a counterclaim, in which he avers that he married the appellee in the year 1866; that at the time of such marriage there was a valid and subsisting claim against said land in favor of one David W. Fisk, amounting to the sum of $600; that said land at said time was worth no more than $900; that appellee had no money or means of obtaining money with which to satisfy said demand, so a lien and incumbrance on said land, and to enable her longer to hold and maintain her title to the same, and was about to and would have wholly lost said land; that appellant was in possession of $400, and at the earnest solicitation of the appellee, and upon her verbal promise to him that he should, if he would pay off said claim, be a joint owner with her in said land, he laid out and expended $400, and gave his notes, which he subsequently paid, with his own money, for the balance of said claim so held by the said Fisk; that ever since the year 1866 appellant and appellee lived together as husband and wife on said land, until the ------ day of February, 1885; that during all said time he has paid all taxes and assessments against said land, amounting to $500; that in 1866 said land was all uncleared wild land, and that appellant by his own labor has cleared up and reduced to cultivation all of said land, and has made all of the improvements thereon; that on the ------ day of February, 1885, while appellant was away from home, the appellee, without his knowledge or consent, and without any fault on his part, removed from the said land and the home of the appellant, and went to reside in the city of Elkhart; that appellant remained upon said land, living upon and farming the same to the time of filing this counter-claim; that he now is, and at all times has been, willing that appellee shall return to their said home, and enjoy with him the use and benefit of said land. Prayer that he have such relief as he is in equity and good conscience entitled to receive in a court of equity. A demurrer was sustained by the court to this paragraph, and the appellant excepted. The cause was tried by a jury, resulting in a verdict for the appellee. Over a motion for a new trial the court rendered judgment on the verdict, and the appellant excepted. In this court the appellant assigns as error (1) that the court below erred in sustaining appellee's demurrer to appellant's second answer or counter-claim; (2) that the court erred in overruling appellant's motion for a new trial.

It is settled law in this state that the wife may sue the husband in relation to her separate property. Wilkins v. Miller, 9 Ind. 100;Scott v. Scott, 13 Ind. 225. Under section 254, Rev. St. 1881, a married woman may sue alone (1) when the action concerns her separate property; (2) when the action is between herself and husband. By section 5116 it is declared that her lands, and the rents and profits therefrom, shall be her separate property as fully as if she were unmarried; and by section 5129 it is provided that all suits in relation to the wife's lands, if they be separated, shall be prosecuted in the name of the wife alone. In New York, under statutes very similar to our own, it was held that the wife might maintain an action...