Derry v. Derry

• Decision Date: 22 November 1884
• Docket Number: 10,955
• Citation: 98 Ind. 319
• Parties: Derry et al. v. Derry
• Court: Indiana Supreme Court

98 Ind. 319

Derry et al. v. Derry

No. 10,955

Supreme Court of Indiana

November 22, 1884

From the Hancock Circuit Court.

J. A New and J. W. Jones, for appellants.

W. R Hough, for appellee.

OPINION

Colerick C.

This action was brought by the appellee against the appellants for the partition of certain real estate in Hancock county Indiana. The complaint, in substance, averred that one Jeremiah Derry died intestate, seized of the land in controversy, leaving surviving him, as his only heirs at law, the appellee, who is his widow, and the appellants, who are his children and grandchildren; that the appellee, as such widow, was the owner of the one undivided third part of said land, and that the other two-thirds were owned by the appellants in certain specified shares. Wherefore she prayed that her interest therein might be set apart to her, etc.

An answer in three paragraphs was filed, but afterwards the first paragraph, being the general denial, was withdrawn. In the second paragraph it was averred that the appellants were the only heirs at law of Malinda Derry, deceased, who was, at the time of her death, the wife of said Jeremiah Derry; that Malinda, in her lifetime, authorized and empowered her husband to purchase for her the land in controversy, and that he accordingly purchased the same for her, and paid the purchase-money therefor with her money, which she furnished for that purpose, and that he, without her knowledge or consent, caused the land to be conveyed to himself. In the third paragraph it was alleged, as in the second, that the appellants were the only heirs at law of Malinda Derry, who was at the time of her death the wife of said Jeremiah Derry, and it was then averred that on the day of -----, 1853, Malinda purchased of Warren G. Smoot the land in controversy, and paid him the full price therefor with money of her own separate estate; that at the time of said purchase and the execution of the deed of conveyance for the land, it was agreed by and between her and her husband, in good faith and without any fraudulent intent, that Smoot should execute the deed for said land to her husband, and that he should hold the same in trust for her; that, in pursuance of said agreement, Smoot conveyed the land to her husband, who, from that time until his death, held the same in trust for her and her heirs; that she, in pursuance of and under said agreement, made lasting and valuable improvements on the land, and paid for them with her own separate money.

To these two paragraphs demurrers were sustained, and the appellants declined to answer further. A judgment was rendered, awarding to the appellee one-third of the land in fee simple, and from this judgment an appeal was taken to this court, which resulted in the reversal of the judgment, it being held that the court below erred in sustaining the demurrers, and the cause was remanded with instructions to the court to overrule them, and for further proceedings. See Derry v. Derry, 74 Ind. 560. In accordance with the instructions so given the demurrers were overruled, and thereupon a reply of general denial was filed. It appears by the record that after the cause was so remanded the appellee, by leave of the court, filed a supplemental complaint in which it was averred that after the rendition of the judgment so appealed from, and while said appeal was pending in this court, the administrator of the estate of Jeremiah Derry, upon proper application therefor, duly procured an order of the circuit court of Hancock county authorizing him, as such administrator, to sell a portion of the land in dispute to pay the debts of said estate, and that under and by virtue thereof he had sold and conveyed the same to Nancy E. Duddings, and that she had afterwards conveyed the same to Elbert O. Newhouse, who was then the owner thereof. To this supplemental complaint a demurrer was filed by the appellants which was overruled, and thereupon they filed an answer of general denial thereto. The issues, so formed on said original and supplemental complaints, were tried by a jury, who returned a verdict in favor of the appellee, upon which, over a motion for a new trial, a judgment was rendered in her favor, by which one-third of the land in controversy was assigned to her. The errors assigned are the overruling of the demurrer to the supplemental complaint, and the overruling of the motion for a new trial.

No question is presented by the demurrer to the supplemental complaint. See Morey v. Ball, 90 Ind. 450, where it was held that "Such supplemental complaint does not supersede the original, but both stand and constitute the complaint. As such pleading only constitutes a part of the complaint, a demurrer to it is unknown to our practice." No specific objection to the supplemental complaint has been made in this court by the appellants, and as we are unable to discover any, no question thereon is presented for our consideration.

Of the many causes specified in the motion for a new trial, the only one urged in this court is that the court below erred in giving to the jury the following portion of its second instruction: "If, prior to July 24th, 1853, Malinda Derry owned real estate in Madison county, Indiana, and prior to said date she sold and converted the same into money, by and with the consent of her husband, and they, or either of them, purchased the lands in controversy with the said proceeds of her said lands, and he caused the deed therefor to be made to him, the title would vest in him, and the plaintiff would be entitled to recover the undivided one-third thereof; and the fact, if it exists, that the deed was so made to him without the consent of Malinda Derry, or that the husband purchased the lands with such proceeds of said lands, under an agreement that he would take and hold the deed in trust for his wife Malinda, would be wholly immaterial."

Before considering the correctness of this instruction it is proper, if not necessary, to briefly state the facts in this case, as developed by the evidence. It appears therefrom that prior to July 24th, 1853, Malinda Derry owned twenty-six acres of land in Hendricks county, Indiana, and that subsequently her husband, by purchase, became the owner of twenty-four acres of land, all of which, fifty acres in all, was afterwards sold, in gross, by them for $ 300, and the proceeds derived therefrom were invested in the purchase of the land in controversy. The deed of conveyance for the land so purchased was executed to the husband alone, in which the consideration paid for the land was recited as $ 675. No evidence was introduced, or offered, proving, or tending to prove, that the consideration therefor was other or different from that expressed in the deed. In the absence of such opposing evidence, the presumption is that the amount of the purchase-money was correctly stated in the deed. The evidence introduced on the trial further proved, or tended to prove, that prior to the sale of the land in Hendricks county, Jeremiah and Malinda declared their intention to sell the same and invest the proceeds arising therefrom in the purchase of the land in controversy; and that after its purchase Jeremiah stated that the proceeds had been so invested. After the purchase of said land a house was erected thereon, for which the carpenter who erected the same received a heifer from Malinda in part payment therefor, and the balance of the sum to be paid for the house, amounting to about five dollars, was paid by her son at her instance; and that prior to the erection of the house the carpenter was informed by Jeremiah that he should see Malinda in relation to its construction, as it was her land, and that if she paid for the house it was all right, as he would not pay for it. The deed for the land was made on the 15th day of January, 1853.

The evidence tended, at least, to prove that the money realized from the sale of the land owned by Malinda was regarded and treated by her husband as her separate property, and that he never asserted any claim to it by virtue of his marital rights. If he, as her husband, possessed any legal right to the money, it was within his power to reject it. Brookville...