Foltz v. Wert

• Decision Date: 28 October 1885
• Citation: 2 N.E. 950,103 Ind. 404
• Parties: Foltz v. Wert and others.
• Court: Indiana Supreme Court

103 Ind. 404

2 N.E. 950

Foltz

v.Wert and others.¹

Supreme Court of Indiana.

Filed October 28, 1885.

Appeal from Marion superior court.

Wilson & Wilson, for appellant.

R. N. Lamb and S. M. Shepard, for appellees.

Mitchell, C. J.

The foundation of the proceeding exhibited in the record before us is a complaint to review the proceedings and judgment of the Marion superior court in a partition suit. The complaint embraces the record of the partition suit, consisting of the complaint, answer, replies, decree, and motion for a new trial, and rulings thereon, and alleges, under various specifications, that error of law is apparent on the face of the record and proceedings. A demurrer was sustained to the complaint for review, and, refusing to amend, judgment was given against the appellant. The record of the partition suit discloses that, upon issues made, the court found that the allegations of the complaint therein filed were true, and upon facts found partition was decreed, and the rights of the parties adjusted substantially as set forth in and according to the prayer of the complaint. Whether the ruling on the complaint for review is maintainable or not, depends in the main upon whether the facts stated in the petition for partition warrant the decree which was made to rest upon it. The complaint for partition alleges that Joseph Wert died testate on the third day of June, 1872, leaving as his legatees his widow, Rebecca A. Wert, and four children, John W., Edwin A., Frank A., and Benjamin C. Wert. The will is made the basis of the rights of the plaintiffs in the proceeding for partition, and is set out in the complaint. The first and second clauses are as follows:

“ Item 1. To my beloved wife, Rebecca Ann Wert, I devise and bequeath all my property, real and personal, (after my just debts are paid,) to have and to hold the same for the term of her natural life.

Item 2. At the death of my said wife it is my will that all my real estate and personal property remaining shall be divided equally between my children, with this proviso, however, that until the youngest of said children shall be of age the others shall have no power to sell or dispose of the said property; and it is my will that none of the real estate which I may own at the time of my death shall be sold, nor any money then at interest be withdrawn or incroached upon in any manner, unless in case of strict necessity, all other means having first been exhausted.”

Item 3 names the wife as executrix.

It is averred that the testator died seized of certain real and personal property, and that after his death certain other real estate was purchased, by the consent of those interested, with funds belonging to the estate. It is further averred that the personal estate, consisting of notes, stocks, and money, amounted to about $15,000. It appears that after the death of the testator, and while his widow was acting as executrix of his will, she advanced to the sons from time to time moneys derived from the personal estate, notes, stocks, bonds, etc., the use of which was bequeathed to her during her life-time. These advancements were made under an agreement mutually entered into between the mother and sons to the effect that an account should be kept of the moneys and notes distributed to each, and that in the final partition and distribution of the estate the amounts received by each should be charged against his share, so that the shares should in that manner be equalized in the end. It appeared that the money and notes received by the four sons under this arrangement amounted in the aggregate to $16,454. Of this, John W. had received $6,843.17; Frank A., $4,792.01; Edwin A., $1,927.20; and Benjamin C., $2,891.31. After this agreement and the distribution under it were made, the mother resigned her trust as executrix, and on the fifteenth day of September, 1876, Jesse Jones was appointed administrator de bonis non. On the fourth day of January, 1879, he made his final report as such, and was discharged. In this report and account the distribution above mentioned was exhibited to the court, and the agreement under which it was made was substantially recited. The mother and sons, respectively, signed a writing attached to and filed with the report, in which they consented to the settlement report, and referred to the agreement therein recited, ratifying and confirming it. The report and settlement were approved, and the administrator discharged.

It was averred in the complaint that John W. Wert had used the moneys advanced to him in business, became insolvent, and had been adjudged a bankrupt; that on the fifth day of December, 1877, long after the money was advanced, and the agreement above referred to made, Fletcher & Churchman recovered a judgment against him, and afterwards, on November 29, 1879, sold his interest in the land described to satisfy an execution issued on their judgment for $1,737.01; that they became the purchasers at the sheriff's sale, and received a certificate of purchase, which they afterwards sold and assigned to Jones & Foltz, who, it is alleged, had notice of the agreement and distribution above referred to. It is also averred that the assignee in bankruptcy, as such assignee, sold the interest of John W. Wert in the lands of which partition was asked to Jones & Foltz, in 1879. The complaint contained the further averment that Lillian E. Wert, wife of John W., never joined in any conveyance or incumbrance of his interest in the lands, and that by reason of the foregoing sales she had become entitled to an undivided one-twelfth part in value of his interest. The mother died April 1, 1879, and the suit for partition was commenced the following December by Edwin A., Frank A., Benjamin C., and Lillian E. Wert, against Jesse Jones and Howard Foltz. Fletcher & Churchman are also named as defendants. The prayer of the petition was that the several amounts received by the parties interested should be taken into the account, and their shares equalized, according to the terms of the agreement, and that the interest of Lillian E., wife of John W., should be protected. Foltz answered to the merits; the other defendants disclaiming any interest. At the final hearing it was agreed that the real estate was not susceptible of partition. A commissioner was appointed accordingly, with directions to sell and distribute the proceeds according to the rights of the parties as fixed by the decree. It was adjudged that from the interest held by Foltz in the right of John W. there should be deducted the sum received by him under the agreement mentioned, with interest from the fourth day of January, 1879, amounting to $7,436.47, and the balance paid over to Foltz; that one-twelfth part of the net proceeds of the sale should be paid to Lillian E., for her interest as the wife of John W. Wert.

The controversy is between Foltz, who claims the share of John W. without diminution on account of the advancements, and the brothers and wife of John W., who claim that the advancements made to him should be taken into the account and charged against his share according to the agreement, and that the rights of his wife should be protected under section 2508, Rev. St. 1881. Foltz, having taken the assignment of the Fletcher & Churchman certificate, with notice of the agreement between the widow and sons of the testator, and of the advancements made under it, can claim no right superior to or different from the rights of his assignors. To the extent that the judgment in favor of Fletcher & Churchman became a lien on the interest of John W., that lien or interest was transferred to him. The rights acquired by him were the same as those through whom he acquired them. It is well settled “that the general lien of a judgment creditor upon the lands of his debtor is subject to all equities which existed against such lands in favor of third persons at the time of the recovery of the judgment.” Courts of chancery will so control the legal lien of the judgment as to restrict it to the actual interest of the judgment debtor in the property, so as to protect the rights of those...