Elwood v. Beymer

• Decision Date: 24 February 1885
• Docket Number: 11,536
• Citation: 100 Ind. 504
• Parties: Elwood v. Beymer et al
• Court: Indiana Supreme Court

100 Ind. 504

Elwood v. Beymer et al

No. 11,536

Supreme Court of Indiana

February 24, 1885

From the Grant Circuit Court.

The judgment is affirmed, with costs.

J. A Kersey and L. D. Baldwin, for appellant.

B. G Shinn, J. Noonan and H. Brownlee, for appellees.

OPINION

Howk J.

The appellees, Catharine and Sealy Beymer, commenced this suit against the appellant, Vashti Elwood, and Jane and John Boxell, and one Trelawney Camblin, who is named as one of the appellees in this court, to obtain the partition of certain real estate, particularly described, in Grant county. In her complaint the appellee Catharine Beymer alleged that she and the defendants to her suit were the owners of such real estate, as the widow and heirs at law of one Thomas G Elwood, deceased, who died in or about the year 1861, seized in fee of the real estate in controversy herein, and, also, of another described parcel of land in Grant county; that, at his death, Thomas G. Elwood left the appellant, Vashti Elwood, as his widow, and Jane Boxell, George W., David R., Newton, John, Eugene and Phoebe C. Elwood, his children, as his only heirs at law; that afterwards Eugene Elwood died intestate, and without issue, and thereupon the real estate descended and became vested as follows: An undivided one-third in appellant Vashti, and an undivided one-ninth each in Jane Boxell, George W., David R., Newton, John and Phoebe C. Elwood; that George W. Elwood died intestate in 1863, leaving the appellee Catharine Beymer as his widow and sole heir at law, and to whom his entire interest in such real estate descended, as his whole estate, real and personal, was of less value than one thousand dollars; that afterwards David R. Elwood purchased and became the owner of the shares of Newton and John Elwood in such real estate, and then had his entire interest in the land, being then the undivided one-third part thereof, set off to him in severalty, in a partition suit instituted by him in the court below, at its September term, 1878; that thereupon the residue of the real estate, now in controversy, vested as follows: An undivided one-half part in the appellant Vashti Elwood, and an undivided one-sixth part each in Jane Boxell, appellee Catharine Beymer, and Phoebe C., who afterwards married the appellee Trelawney Camblin, and died, leaving him, Trelawney, as her surviving husband and sole heir at law, to whom her interest in such real estate descended. Wherefore the appellee Catharine Beymer prayed for partition, etc.

The cause was put at issue and tried by the court, and a finding was made, in substance, as follows: 1. Appellant, Vashti Elwood, for improvements made and taxes paid on the real estate in controversy, was entitled to have $ 168.12 in value thereof set off to her, and was then entitled to have two-thirds of the residue of the real estate also set off to her. 2. Appellees Catharine Beymer and Trelawney Camblin were each entitled to the one-sixth part of such residue of the real estate. The commissioners appointed to make such partition reported to the court that the real estate could not be divided without damage to the owners. Thereupon it was ordered and adjudged that the land be sold, and a commissioner was appointed by the court to make such sale. Appellant's motion for a new trial having been overruled, she has appealed to this court.

In their brief of this cause the appellant's counsel say: "The principal errors relied upon for the reversal of the judgment are the overruling of appellant's demurrer to appellees' answer to her cross complaint, and the overruling of her motion for a new trial." These are the only alleged errors of which mention is made in their brief, and the only errors which we find it necessary to notice in this opinion.

In her cross complaint the appellant stated the ownership of the real estate by her deceased husband, Thomas G. Elwood, and the descent and inheritance thereof, substantially as the same are alleged in appellees' complaint. She then alleged that at the death of her husband, in 1861, the real estate was not worth more than $ 1,500, and his personal estate did not exceed $ 300 in value, and he was indebted in the sum of $ 300; that there was never any administration upon his estate, but appellant paid the indebtedness of his estate out of her own means; that after deducting such indebtedness and appellant's one-third interest, the value of the share of each of the surviving children, in his entire estate, was $ 150; that George W. Elwood, the deceased husband of the appellee Catharine Beymer, through whom she claimed title in her complaint, received from his father Thomas G. Elwood, by way of an advancement in 1860, one horse worth $ 75; that he and appellee Catharine, then his wife, became indebted to the appellant in the sum of $ 237; and that after the death of George W. Elwood appellee Catharine became indebted to appellant in the sum of $ 425, bills of particulars of each of which sums were filed with the cross complaint. Appellant also alleged that her daughter, Phoebe C. Camblin, through whom appellee Trelawney Camblin claimed title to one-sixth of the real estate, became indebted to appellant in the sum of $ 380 before her marriage to Trelawney, and in the further sum of $ 65 after such marriage, of which sums bills of particulars were filed with the cross complaint. Appellant further averred that the indebtedness of George W. Elwood and appellee Catharine, as aforesaid, was incurred by them more than twenty years before the commencement of this suit, and was largely in excess of the value of the share which appellee Catharine claimed in the real estate; and that for more than twenty years the appellant held and owned the share of ...