Fry v. Hare
| Decision Date | 27 April 1906 |
| Docket Number | 20,787 |
| Parties | Fry et al. v. Hare et al |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; Ira W. Christian, Judge.
Suit by William Fry and others against Freeman Hare and another. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
Gavin & Davis and William Booth, for appellants.
William S. Christian, for appellees.
Appellants, as the heirs at law of Charles O. Fry, deceased brought this suit for partition, alleging that they were the owners as tenants in common of an undivided one-third and appellees the owners of an undivided two-thirds part in value of the real estate in controversy. Appellees answered by general denial, and appellee Martha Hare filed a cross-complaint in three paragraphs, alleging ownership in fee of the entire property and asking that her title be quieted. The cause was tried by the court, special findings made, conclusions of law stated thereon in favor of appellees, and decree rendered accordingly.
Appellants have assigned as error the overruling of demurrers to each paragraph of cross-complaint, and error in the statement of each conclusion of law.
The special finding of facts and conclusions of law, with proper exceptions thereto, will present all questions arising upon the pleadings, and render it unnecessary to consider separately the rulings upon demurrers to the several paragraphs of cross-complaint. Ross v. Van Natta (1905), 164 Ind. 557, 74 N.E. 10; Goodwine v. Cadwallader (1902), 158 Ind. 202, 61 N.E. 939; Runner v. Scott (1898), 150 Ind. 441, 50 N.E. 479; Woodward v. Mitchell (1895), 140 Ind. 406, 39 N.E. 437.
The facts specially found by the court are in substance as follows: Appellants William, Albert, Isaac, Abraham L. and Oliver Fry and Melissa Shaffer are the children of Charles O. Fry by his first marriage, and William Wolf is the only child of Erema Wolf, deceased, who was also a daughter by said marriage. In 1864, after the death of his wife, Charles O. Fry married Elizabeth Stern, and on August 6, 1868, died intestate, leaving surviving him, as his only heirs at law, appellants and his widow Elizabeth, who was a second and childless wife. On December 24, 1896, said Elizabeth Fry died. During his said second marriage Charles O. Fry became the owner in fee simple of the real estate involved, situated in Hamilton county, and afterwards, in the year 1867, sold the same to Zadoc W. Passwater, and placed him in possession thereof under and by virtue of said sale. Under and by virtue of said purchase, Passwater, during the lifetime of Fry, fenced, cleared, drained and tiled said real estate, and from the time of his purchase had and held, under claim of ownership, the exclusive, uninterrupted, open, and notorious possession of the same until his death, which occurred in the year 1871, and long prior to his death he paid the purchase money in full. Said Passwater died intestate, and left as his only heirs at law his widow and children, who continued in the exclusive, uninterrupted, open and notorious possession of said real estate under claim of ownership, and made lasting and valuable improvements thereon. In the year 1873 the heirs at law of said Passwater caused partition to be made of his real estate in and through the Hamilton Circuit Court, and by the judgment of said court the real estate involved in this action was set off to Martha F. Hare and Zadoc F. Passwater, who thereafter continued in the exclusive, uninterrupted, open and notorious possession of the same, under claim of ownership, and made lasting and valuable improvements thereon, until August 7, 1891, when Zadoc F. Passwater, for a valuable consideration, conveyed his interest to said Martha F. Hare, who thereafter continued in possession thereof, and ever since has had and held under claim of ownership the exclusive, uninterrupted, open and notorious possession, and still holds such possession of said real estate, and during such time has made valuable and lasting improvements thereon. On March 5, 1867, Charles O. Fry executed to said Zadoc W. Passwater a title bond in writing for the real estate in question, and delivered said bond, together with possession of said real estate, to said Passwater as aforesaid, but his wife, Elizabeth, did not join in the execution of this bond, but after his death, to wit, on August 6, 1891, for a valuable consideration, executed to Martha F. Hare a quitclaim deed for said real estate, which deed was duly recorded. Said Martha F. Hare is the owner in fee simple of said real estate, and appellants are claiming an adverse title and interest therein, which is unfounded and without right.
The court stated conclusions of law upon this finding of facts as follows: (1) That appellants take nothing by their complaint and that appellees recover all costs. (2) That appellee Martha F. Hare is the owner in fee simple of the real estate described, and entitled to have her title thereto quieted as against appellants and to recover her costs.
Appellants severally excepted to each conclusion of law, and in support of their exception contend that upon the death of Charles O. Fry one-third of the real estate in controversy descended to his surviving childless second wife, and upon her death vested in them as her forced heirs under § 2487 R. S. 1881.
An action for partition can be maintained only by one entitled to the immediate possession of real estate. Tower v Tower (1895), 141 Ind. 223, 40 N.E. 747; Brown v. Brown...
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