Erwin v. Garner

Decision Date15 December 1886
Docket Number12,847
Citation9 N.E. 417,108 Ind. 488
PartiesErwin v. Garner et al
CourtIndiana Supreme Court

From the Marshall Circuit Court.

Judgment affirmed.

J. W Parks, S.D. Parks and H. Corbin, for appellant.

M. A O. Packard, O. M. Packard and C. P. Drummond, for appellees.

OPINION

Elliott, C. J.

In 1865 Davis Garner died intestate, the owner of the real estate in controversy, leaving surviving him his widow, Mahala Garner and six children. The widow subsequently married James Emmons, and died his wife in 1884. At the April term, 1873, Mahala Emmons, as the guardian of four of the children of her deceased husband, Davis Garner, filed a petition for the sale of the land of her wards, describing their estate therein as the undivided four-ninths part, and an order for the sale of the land was granted. At the same term she filed a second petition, averring that a mistake had been made in describing the interest of her wards in the land, and alleging that it was an undivided four-sixths part, subject to her life-estate, and that it should have been so described. The prayer of the second petition was that the former order and sale should be set aside, and an order granted for the sale of an undivided four-sixths of the land, subject to the life-estate of the guardian therein. The prayer of this petition was granted, the first order revoked, the sale set aside, and an order entered directing the sale of an undivided four-sixths part of the land, subject to the life-estate of the guardian. On this order a sale was made, duly confirmed, and a deed executed to the purchaser.

The question, as presented by counsel, is, whether the guardian's sale conveyed to the purchaser the undivided four-sixths of the land. It is contended by the appellees that the six children of Davis Garner inherited but two-thirds or six-ninths of the land, leaving in the widow the limited interest in one-third, which, at her death, as she had married a second time, descended to the children by the first marriage, and that this interest could not be sold upon the petition of the guardian. On the other hand, it is contended by the appellant that he is protected by the provisions of the statute and by the rules of law, and that he had a right to rely upon the order of the court directing four-sixths of the land to be sold.

The case is a peculiar one, and not entirely free from difficulty. The second order of the court specifically ascertained the interest of the appellees in the land, fixed it at four-sixths, correcting an alleged mistake in the first order, which fixed the interest at four-ninths, and directed a sale of four-sixths of the land. It is quite plainly the law that the children represented by the guardian had an absolute interest in only four-ninths of the land, and only a mere expectant interest in the one-third vested in their mother during life, so that but for the express judgment directing the sale of four-sixths as their interest in the land, there would be little, if any, difficulty in the case. The existence of the judgment under the peculiar circumstances of the case gives rise to the difficult question, for it presents...

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