Jackson v. Myers
| Decision Date | 17 September 1889 |
| Docket Number | 13,926 |
| Parties | Jackson et al. v. Myers |
| Court | Indiana Supreme Court |
Reported at: 120 Ind. 504 at 510.
From the Orange Circuit Court.
Judgment reversed, with costs, and the court is directed to sustain the demurrer to the second paragraph of the complaint.
N Crooke, M. F. Dunn and G. G. Dunn, for appellants.
G. W Friedley, J. R. East, W. H. East, J. Giles, W. O. Farrell and S. O. Pickens, for appellee.
The appellee, who was the plaintiff below, filed her complaint in two paragraphs, to each of which separate demurrers were filed by the appellants, and the same being overruled by the court proper exceptions were taken. The case was thereafter put at issue by the filing of answers and replies, after which there was a jury trial, a special verdict returned and a judgment thereon for the appellee.
There are several errors assigned, but in view of the conclusion which we have reached as to the second and third errors it does not become necessary to notice the others.
The second error brings before us the action of the court in overruling the demurrer to the first paragraph of the complaint, and the third error the action of the court in overruling the demurrer to the second paragraph of the complaint.
The first paragraph alleges that the appellee is the legal owner of an undivided one-third of the real estate described therein, a wrongful withholding of the possession from her by the appellants, and demands judgment for possession.
The paragraph alleges a tenancy in common as between the appellee and the appellants, and we are inclined to the opinion that it is sufficient to withstand a demurrer, but do not decide the question for the reason that the judgment, (as appears from the record) obtained by the appellee rests entirely upon the second paragraph of the complaint.
The second paragraph is clearly bad, and the court below erred in overruling the demurrer thereto.
The following is a copy of the paragraph, omitting the formal parts: "The plaintiff says that she is the wife of Peter Myers, and has been such for twenty years last past; that on the 30th day of September, 1870, the said Peter Myers was indebted to one John Holland in the sum of $ 2,341.50, and that on said day he executed a mortgage, the plaintiff joining, to secure said indebtedness upon the lands hereinafter described; that afterwards, to wit: on the 3d day of May, 1872, being the owner thereof, Peter Myers executed a warranty deed to said John Holland, with this plaintiff joining, conveying to said John Holland the following described real estate in said county of Lawrence and State of Indiana, to wit: the southwest quarter of section 25, town 5 north, of range 1 east; also, the northwest quarter of section 36, and the west half of the northeast quarter of section 36, town 5 north, of range 1 east; that the consideration for said conveyance was the said sum of $ 2,341.50, and the further sum of $ 500 due the said Holland from the said Peter Myers; that the lands were of great value, to wit: the sum of $ 10,000; that it was also agreed that said deed should be in effect and operation a mortgage to secure said indebtedness, and that as soon as such indebtedness was paid off and satisfied then the said John Holland was to reeded to this plaintiff the undivided one-third of said lands; and it was further agreed that the said Holland would, as soon as convenient thereafter, reduce said agreement to writing, and that said plaintiff and Peter Myers should retain possession of said lands until such re-conveyance was so made; but plaintiff avers that said John Holland fraudulently refused to reconvey, notwithstanding the fact that the said Peter Myers on the 4th day of September, 1874, fully paid off to said Holland all of such indebtedness, and took up such mortgage by executing to said John Holland a quitclaim deed to said real estate, in which this plaintiff did not join; plaintiff further avers that on the day of -----, 1874, said John Holland died, leaving the defendants as his heirs-at-law; that on the 4th day of April, 1876, in a suit for partition, in which this plaintiff was not a party, but in which the heirs of John Holland were parties, by the judgment of the Lawrence Circuit Court the defendant, Berrillah Jackson, was, as between said heirs, declared the owner of said lands herein described, and she on said day received a commissioners' deed for the same, with full knowledge of the agreement of said John Holland and this plaintiff, and without paying any valuable consideration for the same; plaintiff further avers that all of said defendants are claiming an interest in said real estate adverse to this plaintiff, and have cast a cloud upon her title to the same; she further avers that said defendants have committed waste by cutting and removing valuable timber from the same to the value of $ 2,000; that they have received the rents and profits of said real estate for eleven years last past, which were reasonably worth $ 500 per annum; she further avers that said lands are not susceptible of division without injury to the whole."
The facts alleged, which are admitted by the demurrer to be true, created the relation of mortgagor and mortgagee as between the parties. Whether Holland held the legal title subject to redemption by the payment of the indebtedness, or was but a mere encumbrancer, is not material to the conclusion to which we have arrived.
At the time...
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