Funk v. Rentchler

• Decision Date: 18 February 1893
• Citation: 33 N.E. 364,134 Ind. 68
• Parties: FUNK et al. v. RENTCHLER et al.
• Court: Indiana Supreme Court

134 Ind. 68

33 N.E. 364

FUNK et al.

v.RENTCHLER et al.¹

Supreme Court of Indiana.

Feb. 18, 1893.

Appeal from circuit court, Owen county; J. W. Grubbs, Judge.

Action by William H. Funk, as guardian of George Funk, and others, against Henry Rentchler and others, to set aside a conveyance to defendant Rentchler by George Funk on the ground of the insanity of George Funk at the time of executing the conveyance. From a judgment for plaintiffs, defendants appeal. Reversed.D. E. Williamson, N. W. Williamson, and S. A. Hays, for appellants. Beem & Hickman, for appellees.

HACKNEY, J.

The appellants sued the appellees to set aside a conveyance by George Funk and the appellant Barbara Funk, his wife, to the appellee Henry Rentchler, because of the alleged unsoundness of mind of said George at the time of said conveyances; there having been no adjudication of such unsoundness of mind at the time of such conveyance. The second paragraph of answer pleads, generally, that the guardian of said George, after his appointment as such, with full knowledge of all of the facts and circumstances alleged in the complaint, fully ratified and confirmed all the contracts and conveyances complained of. The fourth paragraph pleads specially a ratification of said conveyance by the following alleged facts: On the 15th of March, 1888, and after such conveyance, a petition was filed in the Owen circuit court, upon which a trial was had, and said George Funk was adjudged a person of unsound mind, and the appellant William Funk was duly appointed guardian; “that, at the time of the appointment and qualification of said Funk as guardian, it was agreed between the plaintiff, as such guardian, by his counsel, and by defendant Henry Rentchler, by his counsel, that, in consideration of said Rentchler paying all costs of witnesses made on behalf of said defendant George Funk upon the proceedings to so have the said Funk declared of unsound mind, that all the contracts theretofore made by said George Funk and said Henry Rentchler, of which the said conveyances complained of in the complaint were the only ones, should stand, and be ratified by said guardian, a copy of which said contract is filed herewith, marked ‘Exhibit B,’ and made part hereof; that plaintiff, as such guardian, after the execution of said agreement, and with full knowledge of all the matters in any way affecting the legal rights of his said ward, did so adopt, ratify, and confirm said sale and conveyance so made by his said ward to Henry Rentchler, as provided in said agreement, by permitting said Henry to pay all costs of defendants' witnesses in said action, amounting to $100 and more, for all of which the estate of said ward was liable, and by accepting the benefits of said payment for his said ward's estate, and, further, by permitting and inducing the defendants to remain in possession,” improving the land, erecting new buildings, etc., at the cost of $1,000, and to pay the assignee of said ward a purchase-money note for $525. The agreement made part of this paragraph is as follows. “It is agreed that this suit shall be compromised, the defendant Rentchler paying his own witnesses, the plaintiff paying the balance of the costs; and, where witnesses have been subpœnaed by both parties, and kept here, the fees of such witnesses shall be divided between the parties; and, where witnesses have been subpœnaed by both parties, and discharged by either party, the party keeping such witnesses here after they have been discharged by the other party shall pay their fees after the other party has discharged them. All the contracts heretofore made by George Funk, Henry Rentchler, and Andrew Sheerin shall stand, and be ratified by the guardian to be appointed, in such manner as will make said contracts effectual, except the cellar, which is to be $150, instead of $160. All else to be as heretofore entered into between the parties. What is meant by the defendant is Henry Rentchler. [Signed] Fowler & Pickens. Beem & Hickman.” The appellants' demurrer to these two paragraphs of answer is as follows: “The plaintiff William H. Funk, as such guardian, demurs severally to the 2d, 3d, and 4th pararaphs of separate answer of said Rentchler and wife, for the reason that neither of said paragraphs contains sufficient facts, in law, to constitute a defense to plaintiffs' complaint.” The court overruled this demurrer, and plaintiffs excepted, and assign such ruling as error, in the following form: “That the court erred in overruling the demurrers to the second and fourth paragraphs of amended answer, and each of them.”

The appellees contend that the demurrer is not in the statutory form, and that both the demurrer and the assignment of errors thereon are joint as to the paragraphs, and that, if either paragraph is sufficient, no available error is presented. If the demurrer and assignment of error may be so construed, the result contended for would follow; but we think the demurrer is unobjectionable in form, and challenges the sufficiency of each paragraph. McFadden v. Fritz, 110 Ind. 1, 10 N. E. Rep. 120; Lewellen v. Crane, 113 Ind. 289, 15 N. E. Rep. 515; Ross v. Menefee, 125 Ind. 432, 25 N. E. Rep. 545; Railway Co. v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631; Carver v. Carver, 97 Ind. 497;Stone v. State, 75 Ind. 235. We conclude, also, that the assignment of error is sufficient to present the ruling upon demurrer with reference to the paragraphs jointly and severally. Section 337, Elliott, ...