Irvin v. Buckles

• Court: Indiana Supreme Court
• Writing for the Court: McCabe, C. J.
• Citation: Irvin v. Buckles, 148 Ind. 389, 47 N. E. 822 (Ind. 1897)
• Decision Date: 05 October 1897
• Docket Number: 18,261
• Parties: Irvin v. Buckles

47 N.E. 822

148 Ind. 389

Irvin v. Buckles

No. 18,261

Supreme Court of Indiana

October 5, 1897

From the Whitley Circuit Court.

Affirmed.

T. R Marshall, W. F. McNagny and P. H. Clugston, for appellant.

Andrew A. Adams, for appellee.

OPINION

McCabe, C. J.

The appellee sued the appellant to quiet her alleged title in and to forty acres of land in Whitley county.

The issues were tried by the court, resulting in a special finding of the facts, upon which the court stated conclusions of law favorable to the plaintiff, and rendered judgment accordingly.

The conclusions of law are assigned for error. The other errors assigned raise the same question involved in the conclusions of law.

The material facts found are, that in 1876 the land in controversy, by deed of general warranty, was by its owner conveyed to Wayne Scott and wife; that said Wayne Scott died in the year 1881 or 1882 seized of said land with his said wife, leaving surviving him the defendant, his said wife Amanda J., his widow, and Earnest Scott, Austin Scott, Jennie Scott, now Jennie Buckles, the plaintiff, and Nellie Scott his children and only heirs at law.

That in April, 1883, the defendant filed her petition in the Whitley Circuit Court for partition of the lands of which her husband died seized, making all of said children parties defendant to said suit as his only heirs at law. In said petition she averred that said Wayne Scott died seized of 220 acres of land in the counties of Whitley and Noble and which included and embraced the forty acres now in controversy.

That defendant averred in her said petition that she was the owner in fee simple of the undivided one-third, including the forty acres now in controversy, and that her four children above named who were defendants in said partition suit were the owners in fee simple of the undivided two-thirds thereof, and that they held the same by descent from Wayne Scott as tenants in common.

The defendants in said partition suit being infants, were served with process, and a guardian ad litem was appointed for them by the court, and he filed an answer of denial. The court found the allegations of the petition to be true, that the plaintiff and defendants therein were the owners in fee simple, and tenants in common of the real estate described in the partition complaint, which included the forty acres now in controversy.

The commissioners appointed by the court to make partition met and reported in accordance with the order to them directed, setting off to the plaintiff therein, Amanda J. Scott, as her full interest in said real estate described in the petition, sixty acres of land upon which were the buildings, and set off to the defendants therein, together, one hundred and sixty acres, which included the forty-acre tract now in controversy, which was confirmed by said court at the May term thereof for 1883, and judgment was rendered accordingly.

That immediately after said judgment of partition, said Amanda J. Scott entered into possession and control of the part so set off to her, and has ever since continued to use and occupy the same.

And the defendants therein, also, likewise, entered into the possession and continued to hold the portion set off to them as tenants in common until the month of February, 1893.

That afterwards, in 1893, Jennie J. Buckles, formerly Jennie J. Scott, her husband joining, filed her petition in partition of the real estate so set off to her and her brothers and sisters in the Whitley Circuit Court; that such proceedings were thereupon had as that partition of said land was awarded between said four children, setting off to the plaintiff, Jennie J. Buckles, as her full interest therein among others the forty-acre tract now in controversy. And, thereupon, she took exclusive possession of said forty-acre tract and has ever since continued to exercise acts of ownership over the same.

That in the year 1883, soon after the determination of her partition suit, the defendant herein intermarried with one Hamer Irvin, whose wife she still is; that she is now asserting that she is the owner of said forty-acre tract, now in controversy by virtue of the deed conveying it to her husband and herself as tenants by entireties.

That at the time she brought her said partition suit she was the owner in fee simple of the forty-acre tract in controversy, and the defendants in said suit, her infant children, had no interest therein; that she did not assert her said title in said suit because she was ignorant of her rights, and not from any fraudulent or improper design on her part; that the defendant herein has never conveyed her title in said lands, nor otherwise parted with the same, unless said title has been divested by reason of the facts above set out.

There is no controversy that the conveyance to Wayne Scott and wife vested in them the title in fee simple as tenants by entireties of the forty acres in controversy, and that on the death of one of the tenants the survivor takes the whole estate, and that, in consequence, on the death of Wayne Scott, his widow, by reason of her survivorship, took the whole estate in the forty acres in question in fee simple, and that she thus owned it at the time she brought her suit for partition; but the question, and the sole question is, did the partition suit have the effect to divest that title? If it did not, the conclusions of law are wrong; if it did, they are right.

Appellant's learned counsel contend with earnestness, that a judgment in partition does not settle any question of title, unless the title is put in issue by an appropriate pleading, and there having been no such pleading in said partition suit, the partition decree does not conclude her, nor prevent her from asserting her title. It is contended that it appears that the manifest object of appellant's partition suit was solely to secure a division of the land, and an allotment of shares; and that where nothing more than partition is sought, no question of title is settled, and that it gives no new title to the parts allotted. In support of this proposition are cited, Haskett v. Maxey, 134 Ind. 182, 33 N.E. 358; Luntz v. Greve, 102 Ind. 173, 26 N.E. 128; Miller v. Noble, 86 Ind. 527; Avery v. Akins, 74 Ind. 283; Thorp v. Hanes, 107 Ind. 324, 6 N.E. 920; Utterback v. Terhune, 75 Ind. 363; Stephenson v. Boody, 139 Ind. 60, 38 N.E. 331.

These cases, with many others decided by this court that might be cited, are cases where it was held that there was no pleading presenting for adjudication any question of title, and for that reason in each case it was held that the decree in partition did not conclude the parties as to the question of title. All of the cases recognize that the question of title may be presented in such a suit by appropriate pleadings, and that the decree thereon will conclude the parties as to the questions of title thus put in issue.

All of the cases above referred to were cases where the parties were tenants in common in fact. And most of them are cases where the tenant whose title was afterwards sought to be treated as settled by the decree, are cases where the tenant was a childless second wife, and it was alleged and adjudged that she held a life estate in the land only, whereas her interest was in fee simple. But whether her title was a fee simple or a life estate, she was in every case a tenant in common with the children and other heirs of her husband.

The only difference in the two kinds of title being in one case, the fee descends to the other heirs at the same instant that the life estate would attach, and in the other, title did not vest in the other heirs until the death of the wife. The other class of cases included in the citation above, is such as where a widow holding real estate by virtue of a previous marriage, marries again and during such second or subsequent marriage such real estate is sold on a judgment against her, recovered during her second marriage. In such a case it is held that such a sale only vests in the purchaser an estate in the land during the life of such remarried widow. And though the purchaser supposed the title so purchased by him to be in fee simple, yet his pleadings in his partition suit being "such * * * as are ordinarily employed in partition proceedings and only such an assertion of title as was sufficient to entitle appellant to partition," the decree or judgment of partition is held not to conclude the parties thereto as to the question of title. Miller v. Noble, supra. In all of the cases in both classes it is held, that while the decree may conclude the parties as to title existing at the time of partition, yet it is not, and cannot be as to after acquired or after accruing titles. That is, where the judgment sets off to the childless second wife or widow one-third for life only, instead of the undivided one-third of her deceased husband's real estate in fee simple, that operates and affects only existing titles. It is true she holds a life estate in the one-third, and she holds more, she holds a fee simple in the same third, and the children of the previous marriage being parties to the partition suit have no interest whatever in that third at the date of the decree, but at her death they will have an interest. They will inherit it in fee simple from her. Therefore, it may well be held that an ordinary partition decree cannot operate upon that title, unless the pleadings specially put that title in issue and it is adjudicated in the judgment. Thorp v. Hanes, supra.

And the same is true in the other class of cases already spoken of. While the doctrine already stated, namely that an ordinary judgment of partition does not settle or conclude any question of title to the land parted,...