Kemery v. Zeigler

• Citation: 96 N.E. 950,176 Ind. 660
• Decision Date: 04 January 1912
• Docket Number: 21,908
• Parties: Kemery v. Zeigler
• Court: Supreme Court of Indiana

96 N.E. 950

176 Ind. 660

Kemery v. Zeigler

No. 21,908

Supreme Court of Indiana

January 4, 1912

From Dekalb Circuit Court; Emmet A. Bratton, Judge.

Suit by Myrtilla Kemery against Eunice Zeigler. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Reversed.

P. V Hoffman, D. D. Moody and Charles E. Emanuel, for appellant.

J. H Rose, for appellee.

OPINION

Monks, J.

Appellant brought this suit against appellee to quiet title to the real estate described in the complaint, and to recover possession thereof. Appellee's demurrer to the complaint for want of facts was sustained, and when appellant refused to plead further, judgment was rendered against her.

The only error assigned calls in question the action of the court in sustaining said demurrer.

The facts alleged in the complaint are substantially as follows Appellant was the widow of Henry Probst, deceased, he being her first husband. At his death he left as his heirs the appellant and three children by said marriage. On January 10, 1890, there was set off to appellant in partition proceedings in the Dekalb Circuit Court, in which appellant and said children were parties, the lands described in the complaint as the one-third interest of said widow in said lands, her husband having died intestate. After said lands were so set off, and while appellant, as the widow of said decedent, was holding said land under and by virtue of said first marriage, she married George N. Knepper; and during the existence of such marriage, and while the children of said former marriage were still living, she and her husband sold and conveyed said land by warranty deed to appellee, who entered into possession under such deed. Afterward appellant was divorced from said husband. The children by her former marriage were all living. After said divorce in the fall of 1898, appellant had some outstanding corn and other crops on some land in the neighborhood of said land so conveyed. Appellee's cattle and hogs got onto said land, ate and destroyed said crops, and appellant made a claim upon appellee for damages caused thereby. Thereupon a brother of appellee, a lawyer and shrewd business man, came to appellant, professing to act for appellee, and proposed to appellant that he would, for and on behalf of appellee, pay said claim for damages, if appellant would go to Phillip Noel, who lived in the neighborhood, and who was a justice of the peace, and sign and acknowledge a receipt for said money so paid to settle said damages, the amount agreed upon being $ 15. Appellant did accompany said agent to the home of said justice, and there signed a paper which said agent of appellee took out of his pocket already prepared, and which he informed her was such receipt for said money. Appellant signed and acknowledged such paper without reading it, believing it to be the receipt which said agent informed her it was, and neither said agent nor said justice read such paper to her. She was ignorant and inexperienced in business, and did not know what was necessary in executing said receipt and supposed appellee's said agent acted in all things according to the purport and tenor of the business he and she were transacting, he saying or doing nothing to lead appellant to suspect that he and she were doing anything else than settling the claim for damages for said crops so destroyed, and the amount of damages for said crops so destroyed not being any more than that caused by said stock. At that time appellant was ignorant of the fact that said first deed given by her and her husband was void, and did not convey any title to said land; and she did not know or suspect that she had any right to, or title in, said land; and she did not know that when she was unmarried it was necessary to get another deed to make said title good in appellee. Prior to executing said second deed, appellant married James Kemery, from whom she has since been divorced. One of the children of said Henry Probst and appellant is still living. Before the commencement of this suit, appellant's attorney made a written demand on appellee for possession of the premises described in the complaint, when appellee brought to said attorney a quitclaim deed executed by appellant in the name of Myrtilla Knepper, bearing date of September 20, 1898, acknowledged before said Justice Noel, which is the date of said transaction relating to settling the damages for said crops. Appellee never put said deed on record until after she exhibited it to plaintiff's attorney on said demand. Said deed purports on its face to be executed to confirm and establish the title to said lands in the defendant by reason of the illegality of said first deed, and purports to have been executed in consideration of $ 1, though no consideration was actually paid therefor.

Under § 18 of the act "regulating descents" (1 R. S. 1852 p. 248, 1 G. & H. p. 294, 1 R. S. 1876 p. 411), which reads, "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," it was uniformly held that when a widow remarried she was prevented by said section from conveying or mortgaging lands received by her by virtue of a previous marriage so long as such subsequent marriage continued, and that any deed or mortgage made during the existence of such subsequent marriage was void. Vinnedge v. Shaffer (1871), 35 Ind. 341; Knight v. McDonald (1871), 37 Ind. 463; Mattox v. Hightshue (1872), 39 Ind. 95; Jackson v. Finch (1866), 27 Ind. 316; Bowers v. Van Winkle (1872), 41 Ind. 432; Edmondson v. Corn (1878), 62 Ind. 17; Avery v. Akins (1881), 74 Ind. 283; Connecticut Mut. Life Ins. Co. v. Athon (1881), 78 Ind. 10; Sebrell v. Hughes (1880), 72 Ind. 186; Horlacher v. Brafford (1895), 141 Ind. 528, 40 N.E. 1078; Forgy v. Davenport (1896), 146 Ind. 399, 401-403, 45 N.E. 592.

It was also held that real estate so held by a widow who has married a second or subsequent time cannot be sold on execution against her during such subsequent marriage by reason of the restraint upon alienation imposed by said section of the statute. Schlemmer v. Rossler (1877), 59 Ind. 326; Smith v. Beard (1880), 73 Ind. 159; Hakett v. Hazel (1882), 83 Ind. 534; Forgy v. Davenport, supra.

It has also been held by this court, that if a conveyance is made contrary to the provisions of said section, the widow may recover possession of, and have her title quieted to, the lands so conveyed. Knight v. McDonald, supra; Connecticut Mut. Life Ins. Co. v. Athon, supra; Sebrell v. Hughes, supra, and cases cited.

However, said § 18 was amended in 1879 (Acts 1879 [s. s.] p. 123, § 3015 Burns 1908, § 2848 R. S. 1881), and appellee claims that under said section, as amended, the warranty deed made by appellant and her second husband conveyed said real estate during her life, and that only the children by the first husband can assert any title to said land, and that they can do so only after her death. Said § 3015 reads as follows: "If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, and there be a child or children or their descendants alive by such marriage, such widow may not, during such second or subsequent 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: provided, however, that such widow and her living husband may alienate such real estate, if her children by the marriage in virtue of which such real estate came to her shall all be of the age of twenty-one years and join in such conveyance: and provided, further, that in case there be no child or children or their descendants by the marriage in virtue of which such real estate came to such widow, then, in such case, such widow may, during such second or subsequent marriage, by her second or subsequent husband joining in the conveyance thereof, alienate such real estate in fee simple."

It will be observed that under the section as amended, a widow holding real estate, in virtue of any previous marriage, is only prohibited from alienating it during any second or subsequent marriage in case there be living children or their descendants by the marriage in virtue of which the widow holds such real estate, and that such widow and her living husband may alienate such real estate even in such case, if her children by the marriage, in virtue of which such real estate came to her, shall be of the age of twenty-one years and join in such conveyance.

The prohibition of the conveyance of such real estate in case there be a child or children or their descendants alive by such marriage in virtue of which the widow holds such real estate during a second or subsequent marriage is the same under said § 18 as amended as it was under § 18 before its amendment.

It was said by this court in the case of Maynard v Waidlich (1901), 156 Ind. 562, 569, 570, 60 N.E. 348: "It is settled law that a woman during a subsequent marriage is prevented by § 2641 Burns 1894 [§ 3015 Burns 1908], § 2484 R. S. 1881, and Horner 1897, from conveying by deed or mortgage the real estate received and held by her by virtue of her previous marriage, so long as there are children by such marriage, or their descendants alive." Citing the following cases: Avery v....