Globe Mercantile Co. v. Perkeypile
| Decision Date | 20 November 1919 |
| Docket Number | No. 23679.,23679. |
| Parties | GLOBE MERCANTILE CO. v. PERKEYPILE et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jay County; Jacob F. Denney, Judge.
Action by the Globe Mercantile Company against Perry D. Perkeypile and another. From judgment for defendants, plaintiff appeals. Reversed, with instructions to restate a conclusion of law, and to render judgment for plaintiff thereon.
Superseding former opinions (App.) 121 N. E. 844;123 N. E. 647.
James R. Fleming and Malcolm V. Skinner, both of Portland, for appellant.
S. A. D. Whipple & Son, of Portland, for appellees.
This was an action by appellant against appellees for damages for breach of the covenants of warranty in a deed to certain real estate. The complaint was in one paragraph in the usual form. The appellees filed an answer in four paragraphs. The first is a general denial. The second admits the execution of the deed set out in appellant's complaint for the consideration named, and then alleges in detail the source of their title to the real estate described therein, which is the same as is found in more general terms in the special finding of facts hereinafter set out. The third is a partial answer, pleading payment of certain of the alleged liens in question. The fourth is also a partial answer, alleging that appellant, as part of the consideration for said real estate, retained from the purchase price thereof the amount of certain liens in question, and agreed to pay them.
Appellant filed a demurrer to the second paragraph of appellees' answer for want of facts, which was overruled. It then filed a reply in general denial to all paragraphs thereof except the first. The issues thus formed were submitted for trial, and upon request of the parties the court made a special finding of facts, and stated its conclusions of law thereon. The finding of facts is as follows:
That defendants, Perry D. Perkeypile and Estella Perkeypile, on the 30th day of April, 1912, conveyed by warranty deed to plaintiff, the Globe Mercantile Company, the real estate described in plaintiff's complaint, consisting of 120 acres of land in Knox township, Jay county, Ind. That the plaintiff paid the defendants therefor the sum of $90 per acre, and plaintiff took said lands subject to a mortgage in the sum of $3,200, with accrued interest thereon, and also subject to all taxes and assessments falling due after May, 1912.
That plaintiff about the 1st of June, 1913, paid to William S. Helm the sum of $166 in full satisfaction of a judgment rendered against one Jeremiah Williams on September 16, 1904, in favor of said Helm, and recorded on said date in judgment docket No. 11, at page 49, in the office of the clerk of the circuit court of Jay county, Ind., in the sum of $364.56. That plaintiff also paid to William S. Hervet and John Clark on June 13, 1913, the sum of $87 for the release of a judgment rendered against Jeremiah Williams on the 20th day of August, 1906, in favor of said Hervet and Clark in the sum of $122.64, which was duly entered of record on said date in judgment docket No. 11, at page 50, in the office of the clerk of the circuit court of Jay county, Ind.
That plaintiff also incurred certain expenses in the amount of $48 in compromising and discharging said judgments and also in securing the release of two judgments against the said Jeremiah Williams in favor of the Cory-Leamon Company and John D. Rathvon, both of which were duly recorded in judgment docket No. 11, in the office of the clerk of the Jay circuit court, and which were rendered and recorded prior to the 25th day of November, 1908. That plaintiff also expended the sum of $75.34 in paying assessments duly adjudged against said lands in the Hamilton Heller drainage proceedings in the Jay circuit court of Jay county, Ind., the amount of $20.58 of which fell due prior to June 1, 1912.
That Jeremiah Williams and Scarber Williams were married more than 30 years ago, and lived together as husband and wife until Scarber Williams died intestate on the - day of August, 1906, the owner in fee simple of the 120 acres of real estate in question, and leaving surviving her, her husband, Jeremiah Williams, and several children.
That on November 20, 1905, the said Scarber Williams purchased said lands of William C. Horn, and executed a mortgage, her said husband joining therein, upon said lands to secure notes in the sum of $4,940, given as part of the purchase price of said lands.
That after the death of Scarber Williams intestate in August, 1906, and on the 3d day of January, 1908, Albert Brunson was duly appointed as administrator of her estate, and duly qualified and acted as such administrator; that said decedent not having any personal estate said administrator, on the 6th day of January, 1908, filed his petition to sell said real estate to pay the balance due upon said mortgage notes and other indebtedness of said decedent, all of which indebtedness was incurred subsequent to her said marriage, and averred in said petition that said real estate was of the value of $8,000. That Jeremiah Williams was made a party defendant to said petition, and filed his answer consenting to said sale.
That William S. Helm, William C. Hervet, John W. Clark, the Cory-Leamon Company, and John D. Rathvon, judgment creditors of Jeremiah Williams, as aforesaid, nor either of them, were made parties to said petition, nor did summons or other notice issue to them; that said parties, or either of them, did not have any notice or knowledge of said proceedings to sell said real estate, nor did they or either of them appear in person or by attorney in said proceedings, or in the subsequent proceedings leading up to the final settlement of said estate and the discharge of said administrator.
That said administrator was ordered to sell all of said lands, including the interest of Jeremiah Williams therein, and that the same be sold free from all liens except the taxes for 1908.
That pursuant to said order said administrator sold said land for the sum of $6,938, to the defendants, Perry D. Perkeypile and Estella Perkeypile, on the 25th day of November, 1908, and said defendants, having complied with the terms of the sale, said administrator duly executed and delivered a deed to said defendants for said real estate.
That said administrator received from the sale of said real estate the sum of $6,937 and the amount of $55.97, as interest on deferred payments, which he distributed as follows: To the State Bank of Pennville in payment of purchase-money mortgage assigned to said bank by W. C. Horn, $4,951.52; to appraisers of real estate, $1; funeral expenses, $125.01; taxes, $136.68; costs, $27.29; E. E. McGriff, attorney fees, $125; to Frank Williams, $500; to clerk on Frank Williams' claim, $384.65; services of administrator, $125; to Jeremiah Williams, $200; to clerk for Jeremiah Williams, $415.82 -total $6,991.97.
And that thereafter, on the 12th day of March, 1908, the final report of said administrator was finally approved and he was finally discharged.
From which facts the court concludes as follows:
(1) That the judgments of record existing against Jeremiah Williams on November 25, 1908, in favor of William S. Helm, William C. Hervet, and John Clark, the Cory-Leamon Company, and John D. Rathvon, at the time said real estate was conveyed to said defendants by said administrator, were not valid liens against said real estate or any part thereof, and were not valid liens against said real estate or any part thereof on the 30th day of April, 1912, when said real estate was conveyed by said defendants to plaintiff.
(2) That plaintiff take nothing by his complaint that defendants recover of and from the plaintiff their costs in this action paid, laid out, and expended.
On the conclusions of law the court rendered judgment that the plaintiff take nothing by its suit, and that defendants recover their costs of plaintiff. From this judgment appellant appealed, and has assigned as error that the court erred in overruling its demurrer to appellees' second paragraph of answer, and in stating each of its conclusions of law. The errors assigned present the questions: Were the judgments mentioned in the special finding of facts liens on any portion of the real estate in question? And if they were liens, were such liens divested by the sale of said real estate to pay the debts of the decedent?
[1] Section 3016, Burns 1914, provides that if a wife dies testate or intestate, leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage.
Scarber Williams died intestate, the owner of the real estate in question. On the happening of that event her husband, Jeremiah Williams, by virtue of said statute, became seized immediately of an undivided one-third part thereof. But his interest was subject to the mortgage executed thereon by his wife to secure a portion of the purchase money thereof, and in the execution of which he had joined. By reason of that fact the court had authority to order the whole of the real estate sold for the purpose of paying the mortgage indebtedness. Hampton v. Murphy, 45 Ind. App. 513, 86 N. E. 436, 88 N. E. 876;Williams v. Wood, 60 Ind. App. 69, 107 N. E. 683.
[2] As a general rule, land upon the death of an ancestor passes to the heirs or devisees, who are immediately vested with the title thereto and the right of possession, and are entitled to the full enjoyment of such land, and at common law the title to real property vested absolutely in the heirs upon the death of the ancestor, and was not subject to be made assets for the payment of debts, but by the force of the statute in this state, the real estate of an intestate is as completely subject to his debts as is his personal estate, and even though the personal estate is wasted by the administrator, the purchaser of the...
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