Garretson v. 

• Decision Date: 25 May 1909
• Docket Number: No. 6,415.,6,415.
• Parties: GARRETSON v. GARRETSON et. al.
• Court: Indiana Appellate Court

43 Ind.App. 688

88 N.E. 624

GARRETSON

v.GARRETSON et. al.

No. 6,415.

Appellate Court of Indiana, Division No. 1.

May 25, 1909.

Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.

Action by John Garretson and another against James S. Garretson. From a judgment for plaintiffs, defendant appeals. Reversed, with directions.

M. L. Spencer, W. A. Branyan, and W. D. Hamer, for appellant. Fred H. Bowers and Milo N. Feightner, for appellees.

HADLEY, C. J.

This was a suit by appellees, John and Charles Garretson, against appellant, for partition. The complaint is in two paragraphs: The first in the usual form, and averring that the estate cannot be divided without damage to the owners; the second for a partition and accounting on the part of appellant for the rents and profits. To this complaint appellant averred by way of answer: That, while appellees had the legal title to 10/54, they have no beneficial interest in said real estate, for the reason that the ancestor, Gideon Garretson, prior to and at his death on March 1, 1880, was the owner of said real estate and other lands in said county; that he died intestate on March 1, leaving surviving as his heirs at law his widow and his children, appellant and appellees herein, and a daughter, Margaret; that said Gideon Garretson prior to his death had executed certain bonds and mortgages and pledged all of his real estate to the payment of the same. It is also averred that, at the death of said Gideon Garretson, his entire estate was not of sufficient value, if it had all been converted into money, to pay the debts aforesaid without subjecting to sale the interest of the widow. There are other averments in the answer, which is quite voluminous, but for the purpose of this case it is unnecessary to more fully set them out than we have done.

The questions presented are upon exceptions to the conclusions of law stated upon a special finding of facts made by the court. The finding of facts shows: That Gideon Garretson in his lifetime was the owner of the 80 acres of land described in the complaint; that he and his wife, Sarah A. Garretson, executed a mortgage on said real estate to the Citizens' State Bank, appellee herein; that afterwards said Gideon Garretson died intestate, the owner of said real estate, and leaving as his only heirs at law his wife, Sarah A. Garretson, his daughter, Margaret Garretson, and his three sons, John, Charles, and James Garretson; that, soon after the death of said Gideon, John and Charles conveyed the interest in said land they had inherited from their said father to their mother, Sarah, and their brother James and sister Margaret; that thereafter the mother, Sarah Garretson, died testate, and by the terms of her will devised her interest in said real estate to her said son James, who was still the owner thereof; that thereafter, on September 15, 1895, said Margaret Garretson died, the owner in fee simple of the undivided 15/54 of the real estate described in the complaint; that she left surviving her as her only heirs at law appellant, James, and appellees, John and Charles Garretson, who are her brothers; that appellant was, on said 15th day of September, 1895, the owner of the undivided 39/54 of said real estate; that said appellant was in the absolute and exclusive possession of the whole of said real estate prior to the death of said Margaret Garretson and since said day until the present time, and has received all the rents and profits therefrom; that the reasonable rental value of said real estate for said time is $3,520; that said appellant paid out, and for which he is entitled to credit, interest on the mortgage on said real estate amounting to $2,540, $500 on the principal of said mortgage, for necessary and valuable improvements on said real estate $1,200, and taxes on said real estate $477; that there is a valid existing mortgage on said real estate in favor of appellee Citizens' State Bank in the sum of $3,300, with interest at 6 per cent. from June 1, 1906; that the whole of said real estate is of the reasonable value of $6,400. The court then proceeds to find the respective interests of each, and finds that the amount of said mortgage, together with the sum of $221, the amount with which appellant, James, should be credited, as excess paid out over amount received as rents, making a total amount of $3,521, should be charged against said land, which amount should be deducted from the value of the land and the residue be distributed, 44/54 to appellant, and 10/54 to appellees, John and Charles. The court also finds: That the estate cannot be divided and the shares set off without damage to the owner. As conclusions of law, the court stated that appellees, John and Charles, are the owners of the undivided 10/54 of said real estate; that the mortgage of appellee, Citizens' State Bank, is a first lien on said real estate; that appellees John and Charles are entitled to hold a lien on said real estate for their interest in the sum of $533.14; that appellant, James, be given 60 days within which to pay said lien and retain said land; and, on failure to do so, that said real...