Hancock v. Wiggins
| Decision Date | 11 March 1902 |
| Docket Number | 3,539 |
| Parties | HANCOCK v. WIGGINS ET AL |
| Court | Indiana Appellate Court |
From Randolph Circuit Court; A. O. Marsh, Judge.
Action by Laura B. Hancock against Daniel S. Wiggins and John T Burroughs. From a judgment for defendants on demurrer to complaint, plaintiff appeals.
Affirmed.
J. W Thompson and F. C. Focht, for appellant.
S. A Canada, J. S. Engle, F. S. Caldwell and W. G. Parry, for appellees.
The appellant, Laura B. Hancock, in her complaint against the appellees, Daniel S. Wiggins and John T. Burroughs, a demurrer to which for want of sufficient facts was sustained, showed, in substance, that in 1877, Isaac R. Howard and Isaac N. Gaston recovered a judgment in the court below against the appellees for $ 830; that the appellant was then the wife of the appellee Wiggins, but thereafter they were divorced and she was again married, "and her name is now Hancock"; that after the rendition of the judgment, and while she was the wife of appellee Daniel S. Wiggins, his father, Samuel Wiggins, conveyed to said Daniel and the appellant, as husband and wife, certain real estate described (eighty-three acres) in Randolph county; that the plaintiffs in said judgment caused execution thereon to be issued and to be levied on the undivided one-half of the real estate, claiming the right to take such undivided one-half thereof as the property of the appellee Wiggins; and, in 1886, the sheriff levied the execution on the one-half interest in value of the real estate, as the property of the appellee Wiggins, and proceeded, by direction of the judgment plaintiffs, to advertise the real estate for sale under the execution, and on the 8th of June, 1886, advertised the same for sale on the 3rd of July, 1886, and on the last mentioned day, sold such undivided one-half in value of the real estate, which was bid off by the judgment plaintiffs in satisfaction of the execution, and the sheriff executed his certificate of purchase to the purchasers; that after said levy of the execution, the appellee Wiggins and the appellant, as husband and wife, believing that his said interest was not subject to sale on the execution, on the 28th of June, 1886, in the court below, filed their complaint, by which they sought to enjoin the sheriff and the judgment and execution plaintiffs from selling the real estate on the execution; but before service could be had, the day of sale arrived and the interest in the real estate was sold as aforesaid; that thereupon by their supplemental bill the appellee Wiggins and the appellant set up and alleged that the sheriff's sale and the issuing of the certificate of purchase cast a cloud upon their title to the real estate, and demanded that their title be quieted as against the sheriff and the purchasers at the sheriff's sale; that issues were joined upon the complaint and supplemental complaint in that suit, upon the trial of which the court found for the plaintiffs in that cause (the appellee Wiggins and the appellant) and found that the real estate was their property, and that they, as husband and wife, owned it as tenants by entireties, and that said one-half interest was not subject to the debts of the appellee Wiggins, and was not subject to sale on the execution, and could not legally be sold by the sheriff, and that the sheriff's sale and certificate cast a cloud upon the title of the plaintiffs therein; and the court in said cause decreed that the title of said plaintiffs be quieted, etc. It was further alleged that the defendants in that cause did not pray an appeal at the time of the rendition of the judgment therein, or give notice of appeal, or of their intention to appeal, and the appellant was led to believe and did believe that the cause would not be appealed, and that the defendants in that cause would not appeal therein; that the appellant relying upon that judgment and the effect thereof, and believing that she and the appellee Wiggins owned said real estate and had the legal, fee simple title in and to the same, and that the real estate was not subject to the debts of the appellee Wiggins, and could not be taken on judgment or execution against him, she, after the rendition of the judgment so quieting the title, purchased from the appellee Wiggins his undivided interest in the real estate, and in consideration thereof paid him the full value of that interest, and he thereupon conveyed his interest in the real estate to her; that long thereafter, Howard and Gaston, the defendants in that suit, in 1887, took an appeal therein to the Supreme Court of Indiana, which appeal was pending until December 19, 1893, when that court reversed the judgment of the circuit court and decided that the undivided interest of appellee Wiggins in the real estate was subject to sale on the execution as aforesaid, and ordered the circuit court to sustain the demurrer to the complaint in that suit, etc.; that afterward, on the 16th of November, 1894, the circuit court made and entered its findings and judgment pursuant to the judgment and opinion of the Supreme Court, and sustained said demurrer, and adjudged and decreed that the interest of the appellee Wiggins was subject to sale, etc., and that the sale and the certificate of purchase were legal and valid, and that the purchasers thereby became the owners of the undivided one-half of the real estate; that after the rendition of the decision of the Supreme Court, the sheriff, on the 26th of February, 1894, executed to the holder of the certificate, Isaac R. Howard, a sheriff's deed for the undivided one-half interest in the real estate. It was also alleged that after the sale by the sheriff as aforesaid, and after the decree of the circuit court so quieting the title, the appellee Wiggins and the appellant, as husband and wife, and owners of the real estate as tenants by entireties, as so decreed by the circuit court, held, used, occupied, and enjoyed the real estate, until the conveyance by Wiggins to the appellant, and after that conveyance the appellant held, used, occupied and enjoyed the real estate as her own until the execution of the sheriff's deed to Howard, when Howard took possession and control of the undivided one-half interest in the real estate to the exclusion of the appellant; whereby she lost her said real estate; that, by reason of her real estate being so taken, the debt of Wiggins and Burroughs was paid and satisfied, and the judgment against them was paid and canceled; and that they are thereby justly indebted to her in the sum of, etc. Wherefore, etc.
The cause in the Supreme Court to which reference is made in the complaint is Thornburg v. Wiggins, 135 Ind 178, 22 L. R. A. 42, 41 Am. St. 422, 34 N.E. 999; the ground of the reversal of the judgment of the circuit court being that the real estate was conveyed to the appellee Wiggins and his wife, the appellant, in joint tenancy, and they therefore were not tenants by entireties, and the undivided interest of the husband was subject to sale on execution under the judgment against him and the appellee Burroughs. The complaint now before us does not show that the appellant and the appellee Wiggins were joint tenants; but it shows that under the judgment of the Supreme Court, and the sale and conveyance in accordance therewith, the appellant was deprived of the undivided one-half interest in the real estate which the appellee Wiggins conveyed or sought to convey to her, and that it was...
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