Haskett v. Maxey

Decision Date16 February 1893
Citation33 N.E. 358,134 Ind. 182
PartiesHASKETT et al. v. MAXEY et al.
CourtIndiana Supreme Court


Appeal from circuit court, Howard county; Dan Waugh, Judge.

Action to quiet title by Robert E. Haskett and others against Susanah Maxey and others. Defendants had judgment, and plaintiffs appeal. Reversed.

J. C. Blacklidge, W. E. Blacklidge, and B. C. Moon, for appellants. Cooper & Harness, for appellees.


This was an action brought by the appellants, Robert E. Haskett, Isaac R. Haskett, and Byron Haskett, against the appellees, Susanah Maxey, Joseph T. Brookbank, Mary E. Lea, Amos E. Brookbank, Reuben G. Brookbank, William T. Wiley, Hester A. Mitchell, Mary E. Garrett, Susan S. Stillwell, Elizabeth Pearce, Franklin Worthington, and others, to quiet title to the land described in the complaint. The appellees above named filed a cross complaint against the appellants and others, in which they alleged that they were the owners in fee of the land in controversy, and prayed that their title might be quieted. A large number of other pleadings were filed in the cause, upon which issues were found, and upon which the cause was submitted to the court for trial without the intervention of a jury. The court, on proper request, entered a special finding of the facts proven, and stated its conclusions of law thereon. To the conclusions of law stated by the court each of the parties excepted. It is probable that all the evidence in the cause relating to the title to the land in controversy would have been admissible under a general denial to the complaint and under a similar pleading addressed to the cross complaint. However this may be, it is plain, we think, that all the questions necessary to a determination of the cause upon its merits arise upon the facts specially found by the court. For this reason we deem unnecessary to give the pleadings in the cause any further notice.

The facts in the cause, so far as they are necessary to an understanding of the legal questions involved, as they appear by the findings, are that Thomas Brookbank died intestate, in Howard county, on the 25th day of September, 1855, leaving as his only heirs at law a widow, Mary Brookbank, and following named children and grandchildren, namely: Harrison Brookbank, Susanah Maxey, William Brookbank, Martha Worthington, Mary Bennett, and Reuben G. Brookbank, sons and daughters, and William T. Wiley, Elizabeth Pearce, Susan Stillwell, and Thomas Wiley, grandchildren. His widow was a second wife, by whom he had no children, the children above named being children by a former wife. At the time of his death Thomas Brookbank was the owner in fee of the land involved in this suit, together with other lands in Howard county, Ind. On the 5th day of February, 1856, William Brookbank commenced an action in the Howard common pleas court for the partition of the lands of which his father died seised, making parties thereto the widow and the heirs above named. He alleged in his complaint that he and the defendants to the action other than the widow were tenants in common of all the lands of which his father died seised, describing them, setting forth their respective interests. It was further alleged that the widow, Mary Brookbank, was the second wife of Thomas Brookbank, deceased, and had by him no children, and that the other parties to the suit were children by a former wife, and that he owned all said land at the time of his second marriage. From these facts it was alleged that the widow was entitled to a dowry or life estate only in the lands of which her husband died seised. All the adult defendants to this action suffered a default, and thereupon the cause was submitted to the court, who found the several interests of the parties, among which was a finding that Mary Brookbank, the widow, was entitled to one third of the land described in the complaint in that cause for life, and that said William Brookbank was entitled to one seventh of the land, subject to such life estate. Under this finding, and an interlocutory decree according to its terms, one third of the land described in that complaint was set off to Mary Brookbank, the widow, for life, and the remainder was partitioned among the heirs by the former wife. The widow at once took possession of the land so set off to her, and on the 13th day of February, 1865, sold the same to Henry Williams for the consideration of $500, and conveyed the same to him by quitclaim deed. On the 7th day of July, 1865, Reuben G. Brookbank sold his interest in this land to the said Williams for the sum of $150, and conveyed it by quitclaim deed. On the 18th day of September, 1865, William T. Wiley sold his interest in the land to Williams for the sum of $70, and conveyed by quitclaim deed. On the 31st day of January, 1865, William Brookbank and James Bennett sold their interest in the land to Williams for the consideration of $300, and conveyed to him by quitclaim deed. On the 27th day of January, 1865, Harrison Brookbank and Susanah Maxey conveyed their interest in this land to Williams by quitclaim deed, but upon what consideration does not appear. In the year 1866 the guardian of Franklin Worthington and Susan Wiley, who were then minors, by order of the proper probate court sold and conveyed their interest in this land to Williams for the consideration of $441. The land set off to Mary Brookbank is the land involved in this suit, and each of the appellants claim under Henry Williams, who had no other title than that above set forth. Williams took possession of the land immediately upon the execution of the deed to him by the widow, and he and his grantees have ever since been in the exclusive possession of the land claiming title thereto. This suit was commenced on the 5th day of December, 1885.

It is contended by appellants: First. That upon the death of Thomas Brookbank the fee to the land in controversy vested in his children by the previous marriage, and that his widow, Mary Brookbank, took a life estate only in such land. Second. That by the partition proceedings set out in the special finding of facts, entered by the court, the children of Thomas Brookbank are estopped from asserting that Mary Brookbank, his widow, took any greater interest in his lands than a life estate. Third. That the appellees, plaintiffs in the cross complaint filed by them, are barred by the statute of limitations from asserting any interest in the land in controversy. Fourth. That a rule which would permit the appellees to recover the land in controversy under the facts above stated would violate section 10, art. 1, of the constitution of the United States, inasmuch as it would impair the obligation of contracts.

On the other hand, it is contended by the appellees: First. That upon the death of Thomas Brookbank, his widow, Mary Brookbank, took a fee in the land in controversy, and that their quitclaim deeds to Williams do not estop them from asserting an after-acquired interest in the land. Second. That the partition proceedings set out in the special finding did nothing more than part the lands therein involved, and that the title was in no way affected thereby. Third. That the statute of limitations did not begin to run until the children of Thomas Brookbank had a right of entry, and, therefore, their right in the land in dispute is not barred. Fourth. That the rights of the parties in the land involved in this suit are to be determined by the law as it is now declared, and not by the law as it was declared at the time it is claimed Williams acquired it.

Under the provisions of sections 2483, 2487, Rev. St. 1881, it was held in the case of Martindale v. Martindale, 10 Ind. 566, that a second or subsequent wife, having no children by her husband, took a life estate only in his lands, where he left, upon his death, children alive by a former wife. The decision was rendered at the May term of this court in the year 1858. There is an unbroken line of decisions rendered by this court extending from that date to the May term, 1881, placing the same construction upon this statute, as will be seen from an examination of the following cases, namely: Ogle v. Stoops, 11 Ind. 380;Rockhill v. Nelson, 24 Ind. 422;Louden v. James, 31 Ind. 69;Longlois v. Longlois, 48 Ind. 60; Long v. Miller, Id. 145; Russell v. Russell, Id. 456; Hendrix v. McBeth, 61 Ind. 473;Swain v. Hardin, 64 Ind. 85;Hendrix v. Sampson, 70 Ind. 350;Chisham v. Way, 73 Ind. 362. But at the May term, 1881, the case of Utterback v. Terhune, 75 Ind. 363, was decided, in which it was held that the second or subsequent wife, having no children by her husband, took a fee in his land where he died leaving children alive by a previous wife, and that upon her death the children by the former wife became her forced heirs. This is now settled as the correct construction of this statute. Caywood v. Medsker, 84 Ind. 520;Hendrix v. McBeth, 87 Ind. 287;McClamrock v. Ferguson, 88 Ind. 208;Flenner v. Benson, 89 Ind. 108; Flenner v. Insurance Co., Id. 164; Bryan v. Uland, 101 Ind. 477, 1 N. E. Rep. 52; Thorp v. Hanes, 107 Ind. 324, 6 N. E. Rep. 920; Erwin v. Garner, 108 Ind. 488, 9 N. E. Rep. 417; Gwaltney v. Gwaltney, 119 Ind. 144, 21 N. E. Rep. 552. The construction now placed upon this statute should now be deemed correct, but as to the wisdom of overruling a line of decisions which had been steadily adhered to for the period of 23 years we have nothing to say, further than to remark that stability in the decisions of a court of last resort is greatly to be desired. To overrule precedents which have become recognized rules of property, and the basis of contract relations, unsettles titles, disturbs business transactions, and introduces an element of uncertainty into the administration of justice from which the public suffer great inconvenience. As was said in the case of Rockhill v. Nelson, supra: “There are some questions of law the final settlement of which is...

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