Davidson v. Bates

• Decision Date: 30 June 1887
• Parties: Davidson and others v. Bates and others.
• Court: Indiana Supreme Court

111 Ind. 391

12 N.E. 687

Davidson and others

v.Bates and others.

Supreme Court of Indiana.

June 30, 1887.

Appeal from superior court, Marion county.

Geo. W. Galvin and Hill & Nichol, for appellants. Claypool & Ketcham, for appellees.

Howk, J.

This was a suit by appellants against the appellees, Hervey Bates and Mary J. Vance, to recover the possession of certain described outlots in the city of Indianapolis. Appellees severed in their defense, and each of them separately answered specially, in a single paragraph, disclaiming title as to part of the real estate sued for, and setting up a defense as to the residue thereof; and they separately filed cross-complaints wherein each of them sought to have the title quieted to so much of the real estate described in the complaint as each of them claimed to own. Appellants replied specially in a single paragraph to appellees' answers, and they answered specially in a single paragraph the appellees' cross-complaints. Appellees' separate demurrers to appellants' reply and answer to cross-complaints were sustained by the court. Appellants excepted to these rulings, and, declining to amend or plead further, judgment was rendered that they take nothing by their suit, and that appellees recover of them their costs in this action expended. On appeal to the general term the judgment of the court at special term was in all things affirmed; and from the judgment of general term this appeal is now here prosecuted. In general term below, errors were assigned by appellants which call in question (1) the overruling of their demurrer to appellees' separate answers; (2) the sustaining of appellees' demurrers to appellants' reply to appellees' answers; and (3) the rendition of judgment in favor of appellees upon the pleadings herein. These alleged errors appellants have properly presented here for our consideration. We will consider and decide the several questions presented by these alleged errors in the order of their assignment.

1. In the separate answer of appellee Mary J. Vance to the complaint herein, she first disclaimed title to or possession of part of the real estate described in such complaint; and, as to the residue of such real estate, she admitted that she was in possession thereof claiming title thereto; and she alleged that appellants were claiming title thereto and possession thereof by reason of the fact that one Noah Noble was formerly the owner and seized thereof at the time of his death, and made disposition thereof by his last will and testament, as would more fully appear thereafter; that the plaintiff Winston P. Noble was the son of said Noah Noble, deceased, and a legatee named in said will, and the other plaintiffs herein were the heirs at law of Catharine M. L. Davidson, the daughter of said Noah Noble and a legatee named in said will, who died intestate, and the plaintiff Noble was the son, and the other plaintiffs were the grandchildren, of Catharine S. Noble, the widow of said Noah Noble, deceased, and a legatee named in his said will, a copy of which will was filed with and made part of such answer; and appellee Vance further said that plaintiffs had not either of them, nor did they either of them claim to have, any right, title, or interest in said property beyond what was conferred in and by said ownership and will of said Noah Noble, and the relationship of said plaintiffs to said Noble and said will, as above set forth, but she said that the plaintiffs ought not to be allowed to claim title to said premises, or any part thereof, or to have possession of the whole or any part of such premises, for the reason that, after said Winston P. Noble had arrived at the full age of 21 years, he and his wife by warranty deed conveyed and warranted to one Hervey Bates (through whom appellee Vance claimed title) the real estate in controversy as to which she defendant this suit; whereby said Winston P. Noble was estopped to say he retained any interest in such real estate; and that, in like manner, plaintiff Dorman N. Davidson, before he arrived at the age of 21 years, executed his warranty deed conveying to said Hervey Bates (through whom appellee Vance claimed title) the real estate aforesaid, which deed the said Dorman did not at any time within 15 years of his arrival at full age disaffirm, but, on the contrary, on October 20, 1862, after his arrival at lawful age, he fully ratified and confirmed the same; the said Catharine M. L. Davidson having theretofore died intestate, leaving surviving her Alexander H. Davidson, her husband, and the plaintiffs herein other than Winston P. Noble, her children, as her heirs at law; by reason whereof plaintiff Dorman N. Davidson was estopped to say that he retained any interest whatever in such real estate, and that in like manner, after the death of said Catharine M. L. Davidson, her husband, Alexander H. Davidson, executed his warranty deed conveying to said Hervey Bates (through whom appellee Vance claimed title) the aforesaid real estate; by means whereof the plaintiffs herein were estopped to say that they acquired any interest in such real estate by reason of their relationship to said Alexander H. Davidson.

And appellee Vance further averred that theretofore, on April 14, 1853, one John L. Ketcham was duly appointed by the proper probate court of Marion county, and duly qualified as such, guardian of the estate of said Winston P. Noble, and gave bond for the faithful performance by him of his duties as such guardian, and entered upon the duties of his trust; that afterwards said Catharine M. L. Davidson departed this life, and said Alexander H. Davidson was thereupon, on the ------ day of ------, 185-, by the court of common pleas of Marion county, duly appointed guardian of the estates of the plaintiffs Dorman N., Preston A., Noah N., Susan L., and Catharine A. Davidson,-said Catharine A. having since intermarried with one Frank Miller, and being the Catharine A. Miller named in the complaint herein, and all of said wards and said Alexander H. Davidson being the only heirs of said Catharine M. L. Davidson, the devisee in said will mentioned; that afterwards, on July 25, 1854, John L. Ketcham, guardian of Winston P. Noble, and Alexander H. Davidson, guardian of the plaintiffs herein other than the said Noble, filed their joint petition in such court of common pleas for the sale of real estate, setting forth therein, among other things, that their wards had no personal estate whatever, that such wards were tenants in common of said real estate, and that the sale thereof was necessary for the support and education of said wards, and for the enhancement in value of the remainder of said property; that, upon such petition, the court ordered the sale of such real estate, and appointed John L. Ketcham a commissioner to make such sale, who thereupon qualified, and gave bond for the faithful performance of the duties of his trust; and that said Catharine S. Noble, widow of Noah Noble, deceased, consented in writing to such order of sale.

And appellee Vance further averred that the real estate in controversy, as to which she defends this suit, was duly appraised under said order of sale at $2,500 for each outlot; that afterwards said commissioner duly sold such real estate to said Hervey Bates for the sum of $10,250, being $2,750 in excess of the appraised value of each outlot, which sale was duly reported by said commissioner to such court of common pleas on October 19, 1857, and was then and there approved and confirmed by such court; that thereupon said commissioner executed his deed, conveying to said Hervey Bates all the right, title, and interest of the said minor heirs of said Catharine M. L. Davidson, deceased, in and to such real estate,-said Winston B. Noble having theretofore arrived at the full age of 21 years; that thereupon, on October 20, 1857, and more than five years before the commencement of this suit, said Hervey Bates entered upon and took possession of such real estate, and continued in the quiet and peaceable possession thereof, such possession being adverse to the claim of plaintiffs herein, said Hervey Bates claiming title thereto, and the lawful ownership thereof, for more than 18 years, or until his death in 1876, testate devising real estate to this appellee, Mary J. Vance, and her co-appellee, Hervey Bates, as tenants in common; that afterwards, in 1876, the appellees, Vance and Bates, by mutual agreement between themselves, made partition of the real estate so devised to them, and appellee Bates conveyed to appellee Mary J. Vance all his interest in the outlots described in her answer herein. And appellee Vance averred that at all times subsequent to October 19, 1857, until his death, said Hervey Bates continued in possession of the premises aforesaid, claiming to be the owner thereof by virtue of said deeds from Winston B. Noble, Dorman N. and Alexander H. Davidson, and from said Ketcham, commissioner as aforesaid; and that plaintiffs herein did not, within five years after said sale, nor within five years subsequent to their arrival at the full age of 21 years, nor within 20 years from said Winston P. Noble's arrival at the full age of 21 years, institute their action for the possession of said real estate. Wherefore appellee Vance said that plaintiffs herein were not entitled to the possession of said real estate, and she prayed judgment for her costs, etc.

The answer of appellee Bates herein differs from the answer of appellee Vance, the substance of which we have given, chiefly in this: that he disclaimed, as to those outlots described in appellants' complaint herein which Mrs. Vance claimed to own in her answer, and asserted title in himself to the other outlots sued for, as to which Mrs. Vance filed her disclaimer herein. The two answers stated substantially the same defense to appellants' action, and must stand or fall together.

Appellants' demurrer to these...