Jones v. Loveless

• Decision Date: 25 November 1884
• Docket Number: 10,065
• Citation: 99 Ind. 317
• Parties: Jones, Administrator, v. Loveless et al
• Court: Indiana Supreme Court

99 Ind. 317

Jones, Administrator, v. Loveless et al

No. 10,065

Supreme Court of Indiana

November 25, 1884

Petition for a Rehearing Overruled Jan. 28, 1885.

From the Carroll Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the cross complaint, and for further proceedings not inconsistent with this opinion.

J. L Miller, M. Jones, F. B. Everett and M. W. Miller, for appellant.

W. D Wallace and A. A. Rice, for appellees.

OPINION

Howk, J.

On the 24th day of April, 1878, George B. Rash, then the administrator of William Loveless, deceased, filed in the clerk's office of the Tippecanoe Circuit Court his verified petition, wherein he alleged, in substance, that his decedent died intestate; that the personal estate of the decedent, with his real estate previously sold and ordered to be sold, would amount to about the sum of $ 3,000; that the decedent's debts, so far as they had come to the administrator's knowledge, amounted to about the sum of $ 8,000, showing an insufficiency of the personal estate, including the lands already sold and ordered to be sold, of about $ 5,000; that the decedent died on the 4th day of June, 1876, the owner in fee simple of certain real estate, particularly described, in Tippecanoe county, Indiana, containing 150 acres, more or less, of the appraised value of $ 4,500, as shown by the inventory and appraisement thereof filed with, and made a part of, such petition; that the decedent left surviving him Terressa Loveless, his widow, Nora Loveless, a posthumous child then eighteen months old, and Frances Hudson, Thomas, John E., Sarah, Edwin V., William W. and Moses B. Loveless, his children, of lawful age, as his only heirs at law; that, on the 8th day of April, 1869, the decedent, William Loveless, then in full life, and Terressa, his wife, executed, and on April 9th, 1869, acknowledged, a deed of conveyance to the above named Frances Hudson, and Thomas, John E., Sarah, Edwin V., William W. and Moses B. Loveless, for the aforesaid 150 acres of real estate, which deed of conveyance was sealed up and left in the hands of said George B. Rash, "he not knowing what was enclosed until after his appointment as administrator as aforesaid, when it was opened and taken by a portion of the grantees therein named, and, on the 24th day of June, 1876, recorded in the records of deeds of Tippecanoe county." A certified copy of such deed was filed with, and made part of, the petition.

The administrator of the decedent further averred that such deed of conveyance was never delivered by the decedent, and was without consideration and void as to his creditors, and the real estate described therein was liable and ought to be sold, under an order of the court, for the payment of the debts of the decedent's estate; that the decedent left no other real estate, except that sold and ordered to be sold, and except, also, the 150 acres of land described in such petition; and that the decedent's estate, after the sale of all such real estate, would be insolvent.

The administrator of the decedent, therefore, prayed that the heirs at law of such decedent might be made defendants to such petition, and notified of its pendency; that the deed of conveyance therein described might be declared void, and the real estate described in such deed might be declared liable and bound for the payment of the debts of the decedent's estate, and for an order for the sale of the same accordingly; and that the administrator might be authorized, by an order of the court, to settle such estate as insolvent.

The heirs at law of the decedent, except his widow Terressa, and his posthumous child Nora, appeared and filed their cross complaint, claiming that under the deed of conveyance mentioned in the administrator's petition, they were the owners of the real estate therein described in fee simple, and praying that their title thereto might be forever quieted and set at rest as against the administrator and creditors of the decedent's estate, and as against the said Terressa and Nora Loveless.

Issues were joined upon the administrator's petition and, also, upon such cross complaint, and were submitted to a jury for trial, and a verdict was returned in substance as follows: "We, the jury, find for the petitioner on the issues joined, and that the personal estate of William Loveless, deceased, is insufficient to pay the debts of his estate, as stated in the petition, and that it is necessary to sell the real estate described in the petition to pay said debts." Upon the foregoing verdict, the court ordered and adjudged that the personal estate of the decedent was insufficient to pay the debts of his estate; that he died seized in fee of the real estate described in his administrator's petition; that the deed of conveyance set up by the defendants in their cross complaint was invalid, and that it was necessary to sell such real estate to pay the decedent's debts, and the administrator was ordered to file an inventory and appraisement of such real estate, as required by law.

Afterwards, the cross complainants moved the court for a new trial as a matter of right under the statute, which motion was sustained by the court, and to this ruling the administrator excepted. He then moved the court in writing to vacate and set aside its order, awarding the cross complainants a new trial as of right, which motion was overruled by the court, and to this decision the administrator excepted and filed his bill of exceptions.

And thereafter, on January 15th, 1881, upon the application of the cross complainants, the venue of the cause was changed to the court below.

Before the venue was thus changed, it was suggested to the court that the administrator, George B. Rash, had resigned the duties of his trust, and that the appellant, Mark Jones, had been duly appointed and qualified as administrator de bonis non of the decedent's estate; and thereupon it was ordered that the said Mark Jones be substituted as the petitioner and plaintiff in this cause, which was done accordingly.

In the court below, the issues joined were again tried by a jury, and a verdict was returned, finding against the appellant, upon the issues joined on his petition, and finding for the cross complainants, upon the issues joined on their cross complaint, that they were the owners of the real estate in controversy, at the time of the death of their father, William Loveless, deceased. Over sundry motions of the appellant, the court adjudged and decreed, in accordance with the verdict, that the cross complainants were, at the time of the death of appellant's intestate, William Loveless, the owners in fee simple of the real estate in controversy, and that their title to such real estate should be quieted and forever set at rest, etc.

In this court, the appellant first complains of the alleged error of the court in overruling his demurrer to the appellees' cross complaint. All the heirs at law of the appellant's intestate, except his widow and his posthumous child, united in the cross complaint, and alleged therein, that on the 8th day of April, 1869, their father, William Loveless, then in life, was the owner in fee simple and in possession of the real estate in controversy; that, being such owner, the said William Loveless, on the day and year last named, and his wife Terressa, made, signed and acknowledged their warranty deed conveying to the cross complainants the real estate aforesaid, subject to the reservation contained in such deed that, immediately after thus making, signing and acknowledging such deed, the said William Loveless delivered the same to his nephew, Edward J. Loveless, with directions to hold the same for the cross complainants, the grantees therein, during the lifetime of said William Loveless, and at his death to deliver the same to the cross complainants;...