Godfrey v. Godfrey

• Decision Date: 25 November 1861
• Citation: 17 Ind. 6
• Parties: Godfrey v. Godfrey and Others
• Court: Indiana Supreme Court

17 Ind. 6

Godfrey v. Godfrey and Others

Supreme Court of Indiana

November 25, 1861

APPEAL from the Miami Circuit Court.

The judgment is reversed, with costs. Cause remanded.

J. M Wilson and W. Z. Stuart, for the appellant.

N. O Ross and R. P. Effinger, for the appellees.

OPINION

Worden J.

This was a petition by the appellant against the appellees, for the partition of a certain tract of land. Miller demurred to the petition, and the demurrer having been sustained, the petitioner appeals.

The petition sets out, in substance, that by a treaty made October 23, 1826, between the United States and the Miami tribe of Indians, one section of land was granted to Louison Godfrey, a plat of which was filed and made a part of the petition. From the plat filed, it appears that the land lies in township twenty-seven north, of range three east, but the particular section, or other definite description, does not appear. It is alleged that Louison Godfrey, in his lifetime, sold and conveyed three hundred and forty acres of the tract, leaving in himself three hundred acres in the north part of the section, of which he died seized. It is alleged that Louison Godfrey left children and grand children, to whom the three hundred acres descended, one of whom was the petitioner, Shin-go-qua Godfrey, and the others are made defendants. It is also alleged that John W. Miller and Edward A. Godfrey, (who are not heirs of Louison,) each claim and pretend to have a title to the three hundred acres, or some part thereof, but the nature of their claims and title, and the amount of their respective interest, the petitioner did not know; that the petitioner does not know whether Miller and Edward A. Godfrey have any interest in the lands, or not, but as she is informed that each of them pretend to have an interest and ownership therein, they are made defendants. That the petitioner is entitled to one-fifth of the land, by inheritance from her grand father, &c. Partition is prayed.

In support of the decision below, in sustaining Miller's demurrer, four objections are made to the petition, in the brief of his counsel:

1. "It does not show that the lands lie in Miami county; and therefore it does not appear that the Court had jurisdiction."

In the case of Brownfield v. Weicht, 9 Ind. 394, it was held that the Circuit Court, being one of general and unlimited jurisdiction, its authority to proceed in the trial of a cause need not affirmatively appear in the complaint. The objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings. That case is decisive of the point here.

2. "The land is not sufficiently described."

There is, to be sure, no definite description of the land contained in the complaint, but the land sought to be partitioned is the north part of the section granted, by the treaty mentioned, to Louison Godfrey; and certum est quod certum reddi potest. The treaty is a public law, and may be noticed by the Courts; hence, if that sufficiently describes the land, perhaps further particularity in the description would be unnecessary. We do not, however, decide that there is a sufficient description of the land, either directly, or by reference to the treaty. But we think the uncertainty in description can not be taken advantage of on demurrer. There are facts stated sufficient to constitute a cause of action. Those facts are, that three hundred acres in the north part of the section granted to Godfrey by the treaty, descended to his heirs, of whom the petitioner is one, and entitled to partition thereof. The uncertainty in the description can not be regarded in the same light as the omission of a fact necessary to be stated, in order to constitute a cause of action. The uncertainty in the description might have been obviated by a motion to require the pleading to be made definite and certain, by amendment. Code, § 90.

3. "The complaint only shows who are the owners of four-fifths of the land, and does not aver that the petitioner does not know who is the owner of the other fifth."

There is a little confusion in the statement of the respective shares of the children and grand children of the reservee and perhaps the shares, as set out, do not exhaust the whole of the land. But the petition states that the land descended to those children and grand children, and they are all made parties. We can not perceive how Miller, who alone demurred, is interested as to the question of a proper division between the descendants of the reservee. Those descendants were made parties, and whether the petition set out the supposed rights of each properly, or not, made no difference to Miller; as a judgment in his favor would bind them, and a judgment against him, would render it...