Finley v. Cathcart

• Decision Date: 23 November 1897
• Docket Number: 18,347
• Citation: 48 N.E. 586,149 Ind. 470
• Parties: Finley v. Cathcart et al
• Court: Indiana Supreme Court

48 N.E. 586

149 Ind. 470

Finley v. Cathcart et al

No. 18,347

Supreme Court of Indiana

November 23, 1897

Rehearing Denied Feb. 16, 1898, Reported at: 149 Ind. 470 at 489.

From the Washington Circuit Court.

Reversed.

Asa Elliott, for appellant.

Harvey Morris, for appellees.

Jordan J. Howard, C. J. McCabe, J., concurs in the dissenting opinion.

OPINION

Jordan, J.

Appellant instituted this action to quiet title to certain described real estate situate in Washington county, Indiana. Appellees Daniel E. Cathcart and wife appeared to the action, and filed an answer in two paragraphs, the first being the general denial. The second set up facts whereby they sought to establish the defense of res judicata between the appellant and the appellee Daniel E. Cathcart. Upon the question of title to the lands in dispute by reason of a judgment in an action for partition, wherein the appellant and said appellee were defendants, but were defaulted by reason of their failure to appear. Under the issues joined the court made a special finding of facts, and stated its conclusion of law adversely to the appellant, and over her objections rendered a judgment against her as to the lands in controversy.

The material facts in the case, as found by the court, are as follows: In 1891, William Cathcart died, at Washington county, Indiana, intestate, the owner in fee simple of eighty acres of land, of which that described in the complaint was a part. He left surviving no widow, but seven children, including the appellant and appellee Daniel E. Cathcart. Appellant, after the death of her said father, appears to have intermarried with one Finley. By virtue of the death of their father, his lands descended to his children in equal parts, and they held the same as tenants in common. In 1892, two of the children conveyed their interest of two-sevenths to the appellant, and in 1893 appellee, Daniel E. Cathcart, by his deed of "general warranty," conveyed his undivided one-seventh in the said tract of land to his sister, the appellant. This deed was delivered, but not recorded. Including the interest which appellant acquired by descent and that which was vested in her by the conveyances heretofore stated, she became invested with, and was the owner of an undivided four-sevenths of the real estate. Some time prior to September, 1896, William F. Cathcart, one of said children, conveyed his one-seventh to one Reyman, who, prior to September, 1896, conveyed the same jointly to Walter, William S., and Stephen S. Mabry. Prior then, to September 14, 1896, said tract of land was held undivided in common as follows: One-seventh by the Mabrys jointly, four-sevenths by appellant, one-seventh each by John M. and Minnie E. Cathcart, the two latter being son and daughter of said William Cathcart, deceased. On the 14th day of September, 1896, the three Mabrys filed a petition for partition in the Washington Circuit Court, making the appellant, Mrs. Finley, John M. Cathcart, Minnie Cathcart, and the appellee, Daniel E. Cathcart, defendants thereto, claiming or alleging in their petition that they, the plaintiffs, each owned one-twenty-first interest in value in the lands, and that appellant, Phalicia A. Finley, owned three-sevenths, and appellee, Daniel E., John M. and Minnie Cathcart each owned one-seventh. All of the said defendants, being duly notified of the pendency of said action, failed to appear and were defaulted, and thereupon the court, on the petition in said proceeding, ordered that the land be partitioned as follows: One-seventh in value jointly to said petitioners, three-sevenths to the appellant, Mrs. Finley, and one-seventh to appellee, Daniel E., and one-seventh each to John M. and Minnie E. Cathcart. Commissioners were appointed by the court, and they partitioned the lands accordingly, assigning to Daniel E. Cathcart, the appellee, one-seventh of the real estate, which is the same now in dispute. The partition so made was confirmed by the court. The court further finds "that plaintiff, but for said partition record, would own one-seventh in value more than was set off to her in severalty in said action."

In view of these facts, counsel for appellant contends that she is not precluded or estopped by the judgment of the court in the partition action from asserting title to the appellee's interest in the land through his deed of conveyance to her; while on the other hand, counsel for appellee earnestly insists, that as the statute relative to partition proceedings requires the rights and title of the parties to be stated in the petition, and as the petition filed by the Mabrys alleged that appellee's interest was one-seventh and appellant's three-sevenths, and as partition was made accordingly, and confirmed by the court, the question is res judicata, and appellant is now estopped by the judgment from asserting through her deed from appellee any claim against him to the one-seventh which had been vested in her by said conveyance prior to the commencement of the action for partition. Or, in other words, the insistence of counsel for appellee virtually is that upon the issues tendered alone by the petition of the plaintiffs in the partition action the court was authorized to order, as it did, under the averments of the petition, that the interests of the several defendants in the land, as therein alleged, be partitioned to each of them in severalty, and thereby conclusively settle, as between each of them, all their rights, title, and interests in and to the premises.

In order to determine the question at issue between the parties to this appeal, an examination of the statute concerning the partition of lands becomes essential, as it certainly will be helpful in arriving at a correct solution of the controversy. Section 1200, Burns' R. S. 1894 (1186, R. S. 1881), provides that, "Any person holding lands as joint tenant or tenant in common * * * may compel partition thereof in the manner provided by this act." The section next following provides that, "Any such tenant may apply to the circuit court, * * * by petition setting forth a description of the premises and the titles therein of the parties interested." By the next section it is provided that the pleadings, proceedings and practice shall be the same as in civil actions, except as otherwise provided in this act. Section 1203, Burns' R. S. 1894, in part, reads as follows: "If upon the trial of any issue, or upon default, or by consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition." Section 1207, Burns' R. S. 1894, provides that, "Two or more persons may, if they choose, have their shares set off together." It is evident that any person who comes within the provisions of section 1200, supra, when the land is susceptible of division without damage to the owners, may enforce partition, and is entitled to have his interest in the premises assigned to him in kind, and thereby have and hold the same in severalty. But it does not follow in such a case, when one or more co-tenants, as was done in the partition action herein mentioned, petition the court for partition, making other alleged co-tenants defendants, and where the latter are defaulted, and do not appear to answer the petition, and no cross-complaint is filed by any of them tendering any issue between themselves, and they in no manner express to the court a desire or request to have their respective interests in the premises set off, that the court may, under such circumstances, proceed to order, upon the petition alone, that partition be made among such defendants, and assign to each the interests alleged in the petition, and thereby preclude said defendants, as between each other, as to all their rights, titles and interests in and to the real estate which was the subject of partition. The language of section 1203, supra, is, "If * * * it shall appear that partition ought to be made the court shall award an interlocutory judgment that partition be made to parties who may desire the same, * * * taking into consideration advancements * * * and the residue of the premises shall remain for the persons entitled thereto, subject to future partition." (The italics are our own.) In Pipes v. Hobbs, 83 Ind. 43, this court, in passing upon the sufficiency of a petition in a partition action, said, "The statute provides that 'the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, * * * and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.' * * *

"The court needs to know the interest or shares so far as to be able to specify them in making the partition, --the portions that are to be set off, each to the owner or owners thereof desiring partition, and the residue, which is not to be partitioned among its owners, must be known.

"When there are two or more defendants, and the complaint has described the premises and the plaintiff's right and title therein, showing the share which he desires to have assigned to him by partition, it is a sufficient further compliance with the statute to set forth the rights and titles of the parties interested in the residue of the premises as one share owned by them all leaving the parties entitled to such residue, each of whom should be best qualified to state his individual interest, to seek...