Dehart v. Dehart

• Decision Date: 05 December 1860
• Citation: 15 Ind. 167
• Parties: Dehart v. Dehart
• Court: Indiana Supreme Court

15 Ind. 167

Dehart v. Dehart

Supreme Court of Indiana

December 5, 1860

APPEAL from the Tippecanoe Probate Court.

The decree is affirmed, with costs.

H. W Chase and J. A. Wilstach, for appellant.

OPINION

Worden, J.

Ann Dehart filed her petition, or bill in chancery in the Court below, in 1851, alleging, in substance, that her husband died seized of certain lands in the county of Tippecanoe, in which she was entitled to dower. That her son, John Dehart, the heir of her deceased husband, then owning certain land in Boone county, describing it, and being desirous of selling the said land in Tippecanoe county, agreed with her, that if she would execute a deed to one Fiddler (to whom the said John was desirous of selling), relinquishing her right of dower in the land in Tippecanoe county, he would convey to her a life estate in his said land in Boone county. That she accordingly executed the deed, and that John put her in possession of the Boone county land, and that she has ever since been in the possession thereof, and has made valuable improvements thereon. That John died, without having conveyed to her the life estate in the Boone county land, and without making any provision therefor. That he left surviving him, a widow, who is made a defendant, and against whom a default was taken, and the appellant, Margaret F. Dehart, who was an infant.

Prayer for specific performance of the contract, which, upon the final hearing, was decreed. Margaret F. Dehart, the other defendant, by her guardian, appeals, and assigns two errors; first, that the Court below had no jurisdiction over the subject matter; and, second, that the evidence was not sufficient to sustain the decree.

It is claimed by the appellant, that the proceeding is one at law being a mere petition, and that the Court below, as a Court of law, had no jurisdiction, because the statute authorizing such proceedings by petition, only extends to cases where a person "has executed a title bond or contract for the conveyance of any real estate," &c. R. S. 1843, § 151, p. 855. We need not stop to inquire whether this point would be available for the appellant if the proceeding were to be regarded as a petition at law, as we are of opinion that the proceeding is essentially one in chancery. The complaint, so far as we are able to perceive, contains all the requisites of a bill in chancery. To be sure, it is styled a petition, but it has much of the phraseology of an ordinary bill in chancery, and after setting forth the facts, by way of "humble complaint," it prays that the widow and heir of said John, naming them, "may be made defendants to this bill of complaint," and that they be required to...