Irey v. Markey

• Decision Date: 04 November 1892
• Docket Number: 15,968
• Citation: 32 N.E. 309,132 Ind. 546
• Parties: Irey et al. v. Markey et al
• Court: Indiana Supreme Court

32 N.E. 309

132 Ind. 546

Irey et al. v. Markey et al

No. 15,968

Supreme Court of Indiana

November 4, 1892

From the Huntington Circuit Court.

Judgment affirmed, with costs.

A Taylor, for appellants.

J. B Kenner and U. S. Lish, for appellees.

OPINION

McBride, C. J.

Suit to quiet title to land and for partition. Two answers remaining in the record as it comes to us are: That the plaintiffs' cause of action did not accrue within fifteen years prior to the commencement of the suit, and that the cause of action did not accrue within twenty years prior thereto. The appellants were plaintiffs below, and by way of reply pleaded substantially the following facts: That on the 2d day of September, 1861, one Amos Parrett died intestate, owning the land in controversy. He left surviving him the appellant, who was his widow, and several children, who still survive. Administration was had of his estate, and the undivided two-thirds of the land was sold by order of court to pay debts of the estate, the deed being delivered to the purchaser October 1st, 1864. Prior to the sale the widow was married to her co-appellant, Jonah Irey, and has ever since been and still is his wife. After such marriage she, with her said husband, assumed to sell the undivided one-third of the land which descended to her as such widow, and on the 14th day of October, 1864, they together executed a deed therefor to one Aaron McKinney, who was also the purchaser of the undivided two-thirds at the administrator's sale. McKinney entered into possession of the land under the two deeds. The appellee is the grantee of McKinney, and is in possession. The possession of McKinney and of the appellee has been continuous since October 14th, 1864, the date of the appellants' deed for the undivided one-third of the land.

The appellants contend, as we understand them, that the deed for the undivided one-third, being executed in violation of the statute, was void, and that no rights could be acquired under it; that the appellant Mary is notwithstanding its execution, still owner of the undivided one-third, and tenant in common with the appellee; that the possession has been merely the possession of a co-tenant, and not adverse.

Assuming that the deed was void, possession having been taken under it, it was sufficient to give color of title as against the grantors, and to set in motion the statute of limitations.

The coverture of the appellant...