Eliason v. Bronnenberg
| Decision Date | 12 March 1897 |
| Docket Number | 18,052 |
| Citation | 46 N.E. 582,147 Ind. 248 |
| Parties | Eliason et al. v. Bronnenberg et al |
| Court | Indiana Supreme Court |
From the Madison Superior Court.
Affirmed.
C. K Bagot and T. Bagot, for appellants.
E. B Goodykoonts and G. M. Ballard for appellees.
The appellants, Hattie A. C. Eliason and William H. Eliason, sued the appellees, William B. Bronnenberg and Catherine Bronnenberg, his wife, in a complaint of six paragraphs. The first paragraph was to recover possession of a certain described 80 acres of land, claimed to belong to said Hattie, situate in said Madison county. The second paragraph sought to quiet her title, both paragraphs showing that William H. was her husband. The third and fourth paragraphs sought to set aside a guardian's sale of said real estate to the appellee, William B. Bronnenberg, said sale having been made by the guardian of said Hattie, on the ground that such sale had been made without notice under an order of the Madison Circuit Court, on the petition of the guardian. Both paragraphs show that the plaintiffs are husband and wife. The superior court sustained a demurrer to the amended fifth and sixth paragraphs of the complaint, and overruled a demurrer to the second paragraph of the defendant's answer, the first being a general denial. There was a reply in denial of the second paragraph of the answer. A trial of the issues thus formed by the court without a jury resulted in a special finding of the facts by the court, on which it stated conclusions of law favorable to the defendant, on which the court rendered judgment. The errors assigned call in question the rulings above mentioned, and the conclusions of law. The ruling holding the second paragraph of the answer good requires no consideration at our hands, as the special finding and conclusions of law present the same question. Ross v. Banta, 140 Ind. 120, 123, 34 N.E. 865. The demurrer to the amended fifth and sixth paragraphs of the complaint having been sustained a different rule applies, that is, a special finding cannot present the same question that the ruling sustaining the demurrer to said paragraphs does. Ross v. Banta, supra; Barnard v. Sherley, 135 Ind. 547, 34 N.E. 600; Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N.E. 253.
Therefore we are required to consider their sufficiency.
The substance of the special finding is as follows: "That on and prior to the 3d day of February, 1892, Hattie A. C. Bronnenberg was the owner in fee simple of the 80 acres of land in controversy, which is particularly described as lying in Madison county. That on said day said Hattie was the wife of one Butler Bronnenberg and that they were both minors, under 21 years of age. That on said date one John H. Dusang was by the Madison Circuit Court appointed the guardian of the person and property of said Hattie, duly qualified as such, and on said day filed in the clerk's office of said county a duly verified petition to sell said real estate for the purpose of reinvesting the proceeds in other real estate. That on presentation of said petition to said court said Hattie and her husband appeared in said court and she requested that the order to sell be made, and the court ordered the real estate sold at private sale. That on said day said guardian filed an appraisement of said real estate by two disinterested householders and freeholders, which was duly verified, in which said real estate was appraised at $ 3,600.00; that thereupon said guardian filed in said court his additional bond in the sum of $ 7,500.00 with surety thereon, which was approved by said court, and thereupon said court ordered said real estate sold at private sale. That afterwards, on February 5, 1892, said Dusang, as such guardian, sold said real estate at private sale to the defendant, William B. Bronnenberg, by and with the consent of said Hattie, for $ 4,200.00; that said real estate was not worth any more than $ 4,200.00. That said William B. Bronnenberg fully paid to said guardian, Dusang, the full purchase price of said real estate, to-wit: $ 4,200.00. That said guardian made a duly verified report of said sale of said land as having been sold at private sale to said purchaser for said sum of $ 4,200.00. That thereupon said court approved said sale, and ordered said guardian to make a deed conveying said real estate to said purchaser; and said guardian in compliance with said order executed a deed as such guardian conveying said real estate to said William B. Bronnenberg and he went into possession thereof, and has been in possession ever since as such owner under said deed, and has made valuable improvements thereon to the amount of $ 1,000.00. That said court also ordered said guardian to re-invest $ 4,100.00 of said sum in the purchase of other real estate for said ward, particularly described, situated in Madison county, being 80 acres more or less, which was accordingly done under the order and approval of said court. The owner of said other real estate, Mary Childs, by warranty deed conveyed the same to said Hattie, as such ward, and the same was approved by said court, and the purchase money being paid therefor by said guardian, said court ordered that said guardian receive a credit on account of said purchase in the sum of $ 4,100.00. The guardian duly accounted for the other $ 100.00. And said Hattie A. C. Bronnenberg and her husband, Butler Bronnenberg, moved onto said land so purchased by said guardian for her, and took possession thereof and continued in such possession up to the death of her said husband, Butler Bronnenberg. That after the death of her said husband she married her co-plaintiff, William H. Eliason, and she and her said last husband have been in possession of said real estate so purchased by her said guardian ever since, and that the same is of the value of $ 4,100.00. That said sale of said real estate was made by said guardian of said Hattie without any notice thereof whatever. The substance and material part of the conclusions of law are to the effect that an infant married woman whose husband is also an infant under the age of 21 years, may have a guardian appointed for her by the circuit court in the county in which she and her husband resides and her property is situate, and such guardian may sell the real estate of such ward upon order of the proper court. That the circuit court having jurisdiction, and having confirmed the guardian's sale, the same cannot be set aside for want of notice thereof by the guardian. It is contended by the appellant that by the terms of the statute a sale by a guardian of real estate of his ward, under an order of court is void, if made without notice of such sale.
The statute provides that: "Upon such bond being filed and approved by ...
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