Davis v. Lennen
| Decision Date | 06 June 1890 |
| Docket Number | 14,240 |
| Citation | 24 N.E. 885,125 Ind. 185 |
| Parties | Davis v. Lennen |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Judgment reversed.
C. L Henry and H. C. Ryan, for appellant.
M. S Robinson and J. W. Lovett, for appellee.
The land in controversy was owned, at one time, by Thomas E. Scott, and he was at the time the owner of other lands. He made a will, and died sometime afterwards. His will was duly admitted to probate on the 3d day of September, 1863. In the first item of his will he made a disposition of all of his personal estate. The second item reads thus: "I devise and will to my children herein named, to share among them equally, to wit: James Scott, William Scott, Nancy Scott, Mary E. Scott, and Martha E. Scott, my daughters begotten of the body of Eliza Bell, said children to take said real estate, subject to the right of my wife, Sarah E. Scott, under the statutes of this State." The appellee was the widow of Thomas E. Scott, the testator. After the will was admitted to probate partition of the lands was made by agreement between the appellee and the children of the testator named in his will. This agreement was made in a suit for partition, and embodied in a decree. The land here in controversy was set off to the appellee in severalty. Subsequently the appellee married Peter Lennen, and on the 3d day of February, 1870, she and her husband, Peter Lennen, sold and conveyed the land to Columbus Davis, who entered into possession. Afterwards Columbus Davis sold and conveyed the land to his wife, Clarinda Davis. In May, 1881, Clarinda Davis brought suit to quiet title, and she obtained a decree. After the rendition of this decree Clarinda Davis and her husband executed a mortgage upon the land, and on this mortgage a decree of foreclosure was rendered. At the sale made on the decree the appellant purchased the land, and under that decree now claims title.
Our decisions declare that where the provisions of a will are the same as those of the law, the devisee will be deemed to take by the law, and not under the provisions of the will. Stilwell v. Knapper, 69 Ind. 558; Davidson v. Koehler, 76 Ind. 398; Davidson v. Bates, 111 Ind. 391, 12 N.E. 687. In this instance the provisions of the will are unusually clear and explicit, for it is expressly declared that the widow shall take such an estate as the statute gives her.
It is settled by our decisions that where the title is not in issue, in a partition proceeding, the judgment does no more than divide the land, although it is otherwise where the title is put in issue. Avery v. Akins, 74 Ind. 283; Utterback v. Terhune, 75 Ind. 363; Miller v. Noble, 86 Ind. 527; Woolery v. Grayson, 110 Ind. 149, 10 N.E. 935; Luntz v. Greve, 102 Ind. 173, 26 N.E. 128; Spencer v. McGonagle, 107 Ind. 410, 8 N.E. 266; L'Hommedieu v. Cincinnati, etc., R. W. Co., 120 Ind. 435, 22 N.E. 125.
Title may be put in issue in partition proceedings, and if it is in issue the decree is conclusive. McMahan v. Newcomer, 82 Ind. 565; Ferris v. Reed, 87 Ind. 123; Thorp v. Hanes, 107 Ind. 324, 6 N.E. 920.
The title was not put in issue in the partition proceeding, nor adjudicated, and the right of the testator's widow was, therefore, not affected, except as to the parcel which she was entitled to hold in severalty, and as to that no further than to vest it in her in severalty under the law, and exclude her from the other lands. In other words, the decree in partition simply determined what she should take in severalty, not by what title she should hold it. Whatever the tenure of her holding at the time the proceedings were begun, by that tenure she continued to hold so far as concerns the decree of partition.
A purchaser at a sale made upon a decree of foreclosure rendered against a woman who acquires property from her first husband under the statute, and who marries a second time, does not acquire by mere force of the decree and sale a fee simple title, nor, indeed, any title at all. McCullough v. Davis, 108 Ind. 292, 9 N.E. 276. It is evident, therefore, that if the appellant acquired title it must be for the reason that some decree or judgment other than the decrees in the partition proceedings and foreclosure suit vested it in Clarinda Davis.
If the appellant acquired title it must be for the reason that the decree in the suit to quiet title divested the title of the appellee and the other defendants to that suit, and quieted it in Clarinda Davis. If the decree in that suit did quiet title in her, it freed the property from all claims of whatsoever nature of the defendants existing at the time the suit was instituted, for it is settled law that a decree quieting title concludes the parties. This has long been established law. Jackson v. Smith, 120 Ind. 520, 22 N.E. 431 (524); Watkins v. Winings, 102 Ind. 330, 1 N.E. 638; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446; Faught v. Faught, 98 Ind. 470; Ragsdale v. Mitchell, 97 Ind. 458; Farrar v. Clark, 97 Ind. 447; Cooter v. Baston, 89 Ind. 185 (186); Green v. Glynn, 71 Ind. 336; Lessee of Parrish v. Ferris, 67 U.S. 606, 2 Black 606, 17 L.Ed. 317; Starr v. Stark, 1 Sawy. 270, 22 F. Cas. 1113; Reed v. Calderwood, 32 Cal. 109; Merced Mining Co. v. Fremont, 7 Cal. 317; Curtis v. Sutter, 15 Cal. 259.
A complaint to quiet title challenges the defendants to present their claims, and directly gives them an opportunity to assert their interest or title, and if they fail to do so they are concluded....
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