Horlacher v. Brafford

• Decision Date: 11 June 1895
• Citation: 40 N.E. 1078,141 Ind. 528
• Parties: HORLACHER et al. v. BRAFFORD.
• Court: Indiana Supreme Court

141 Ind. 528

40 N.E. 1078

HORLACHER et al.

v.BRAFFORD.

Supreme Court of Indiana.

June 11, 1895.

Appeal from circuit court, Clinton county; Samuel H. Doyle, Judge.

Action by James W. Brafford against John A. Horlacher and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Palmer & Palmer, Curtis & Moore, and D. W. Howe, for appellants. Young & Hines and John C. Farber, for appellee.

HOWARD, C. J.

This was a suit brought by the appellee for partition of real estate. The controlling question is whether the appellee is, as he claims to be, the owner of the undivided one-half of said real estate. The facts in relation to such claim of ownership, as found by the court, are substantially as follows: James M. Brafford, the father of appellee, died, intestate, December 15, 1862, the owner in fee simple of the land in controversy, and leaving, as his only heirs at law, his widow, Isabella Brafford, and their only child, the appellee. On April 3, 1863, Isabella intermarried with one Daniel L. Starkey, and remained the wife of said Starkey until her death, May 6, 1880. On June 3, 1863, the said Starkey was appointed guardian of appellee, then a minor; and at the June term, 1864, of the common pleas court, as such guardian, and by order of court, he sold the interest of his said ward in said real estate, at its full appraised value, to one Andrew J. McCarty. On April 2, 1864, Isabella Starkey (formerly Brafford) and Daniel L. Starkey, her husband, conveyed by quitclaim deed her interest in said real estate to the said Andrew J. McCarty. Andrew J. McCarty, on receiving said guardian's and quitclaim deeds, went into possession of said real estate, and on December 11, 1865, conveyed the same by warranty deed to the appellant Frederick Hopp, who, in turn, conveyed the same by warranty deed to his coappellant John A. Horlacher. On May 15, 1880, one David Thompson was appointed guardian of appellee, and received from Starkey, the former guardian, all the funds remaining in his hands the property of his said ward. On September 29, 1882, the appellee became 21 years of age, and made final settlement with his said guardian, receiving from him the full amount then found due the ward. Other facts were found which need not be set out. Conclusions of law were also stated in the findings, but will not be considered. From the facts so found, the court found that appellee was the owner of the undivided one-half of said land, as the heir of his mother, Isabella.

Section 2643, Rev. St. 1894 (section 2486, Rev. St. 1881), in force at the death of James M. Brafford, father of appellee, provides that “if a husband die intestate, leaving a widow and one child only, his real estate shall descend one-half to his widow and one-half to his child.” It is not questioned that the one-half of the land in controversy which, under the statute, descended to appellee from his father, was sold, according to law, by appellee's guardian, and is now the property of his remote grantee, the appellant John A. Horlacher. The remaining one-half of said land, by force of the same statute, descended from appellee's father to appellee's mother. At the time of the death of appellee's father, and at the date of the marriage of his mother, as well as at the time of the quitclaim deed made by his mother and her second husband to Andrew J. McCarty, section 18 of the statute of descents, approved May 14, 1852 (1 Gavin & H. p. 294), was in force: since, amended section 2641, Rev. St. 1894 (section 2484, Rev. St. 1881). The section as then in force was as follows: “If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, such widow may not, during such marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be.” By this statute the quitclaim deed made by appellee's mother and her second husband conveyed no title to said land; and on her death, “during such marriage,” May 6, 1880, such real estate, so attempted to be conveyed by her and her husband,...