King v. Carmichael
| Decision Date | 27 November 1893 |
| Docket Number | 16 |
| Citation | 35 N.E. 509,136 Ind. 20 |
| Parties | King v. Carmichael |
| Court | Indiana Supreme Court |
From the Delaware Circuit Court.
Judgment affirmed.
G. H Koons, for appellant.
W. W Orr, J. N. Templer and E. R. Templer, for appellee.
This is an action brought by the appellee against the appellant, in the Delaware Circuit Court, to quiet title to certain real estate described in the complaint, and for an injunction. The appellant appeared and filed an answer, in two paragraphs, and a cross-complaint against the appellee in two paragraphs. The appellee filed her reply to the second paragraph of the appellant's answer, in four paragraphs, and her answer to the cross-complaint of appellant, in four paragraphs. The replies are addressed to the second paragraph of the appellant's answer, and are numbered 1, 2, 3, and 4. The paragraphs of answer are addressed as follows, viz: The first, third, and fourth to both paragraphs of the cross-complaint, and they are numbered 5, 7, and 8; the second is addressed to the first paragraph of the cross-complaint, and is numbered paragraph six.
The appellant demurred to the second, third, and fourth paragraphs of the reply, and also to the second, third, and fourth paragraphs of answer to the cross-complaint. The court overruled all these demurrers. The appellant replied to the second, third, and fourth paragraphs of answer to the cross-complaint, by the general issue. There was a trial by the court, and finding and judgment for the appellee. The appellant filed and submitted his motion and written reasons for a new trial, which, at the next term, was refused, and the court rendered a judgment and decree for the appellee, from which the appellant prosecutes this appeal.
Errors are assigned upon the overruling of appellant's demurrer to the second, third, and fourth paragraphs of reply, also upon the overruling of the demurrer to the second, third, and fourth paragraphs of answer to the cross-complaint, and upon the overruling of appellant's motion for a new trial.
Appellant has not brought the evidence before the court, and has not submitted any argument in support of his assignment of error upon the overruling of his motion for a new trial, and we assume that the alleged error is waived. Louisville, etc., Ferry Co., v. Nolan, 135 Ind. 60, 34 N.E. 710; Elliott's App. Proced., section 444, note 3, and authorities there cited.
We will consider the errors assigned upon the overruling of the appellant's demurrers to the second, third, and fourth paragraphs each of the replication and answer to the cross-complaint. These are so similar and so intimately connected in principle and theory, that, as a matter of convenience, we will view them together.
The second reply to the second paragraph of the answer alleges, in substance, that one Lydia J. King, wife of Lemuel King, died intestate, in Delaware county, Indiana, on March 23, 1865, seized in fee simple, of the real estate described in the second paragraph of the answer, leaving surviving her said Lemuel King and a son, Francis J. King, as her only heirs at law, to whom said premises descended in fee simple; that afterwards, on the 8th day of December, 1865, said Lemuel, believing that he had inherited one equal half part of said real estate from his said deceased wife, sold and, by warranty deed of that date, conveyed one equal half thereof, with other real estate, to Thomas Tate, for $ 937.50, the then full cash value thereof, then paid to and received by him from Thomas Tate, and then and there, under and pursuant to said deed, the said Lemuel King put the said Tate into full possession of the real estate so sold, conveyed, and purchased, and the said Tate then and there, on said 8th day of December, 1865, took and ever since, by himself and his grantees, has held, and plaintiff, as a remote grantee of said Tate, holds full, open, notorious, and exclusive adverse possession of the same under claim of ownership thereof; that afterwards, on January 8th, 1866, Lemuel King was duly appointed, gave bond and qualified as guardian of appellant, and as such guardian made his sworn petition to the court for an order of sale of his ward's real estate, including the remaining undivided one-half of that mentioned in the second answer, wherein, amongst other things, he stated that said ward was then the owner of certain described real estate, including said undivided half aforesaid, which real estate descended to said ward from his deceased mother, who died on said 23d day of March, 1865, and the other half thereof vested thereby in said petitioner as her widower, and, on an order of sale made thereon by the court, he sold said undivided half of said real estate belonging to said ward, to said Tate, at private sale, for $ 915, that being more than the appraised value, and the highest and best price he could obtain for said ward's said real estate; and upon report and confirmation of said sale, and the court's order to that effect, he conveyed said ward's said realty, so sold, to the said Tate, in fee simple, by guardian's deed, and under said deed put said purchaser into possession of said real estate as the owner thereof, and thereupon the said Tate took and, by himself and his grantees, has ever since held, and the plaintiff now holds, the full, open, notorious and exclusive adverse possession thereof, under claim of ownership; that the said Thomas Tate and his grantees, including the plaintiff, have held open, exclusive, adverse possession of said premises described in said answer and in the plaintiff's complaint, under claim of ownership, for more than twenty years; that the defendant--appellant herein--became twenty-one years of age on the 19th day of June, 1882, more than eight years prior to the commencement of this suit, so she says the defendant ought not to have and maintain his second answer.
The third reply to the second answer alleges that the plaintiff now holds, and, with her grantors, mediate and immediate, has had and held full, exclusive, and open adverse possession of all of the real estate described in said answer and in her complaint, for more than twenty years, under claim of ownership thereof, and that the defendant did not, within two years following the time when he attained the age of twenty-one years, assert any claim to any part of said real estate, in any manner whatever.
The fourth reply to the second answer alleges that the supposed claim of the defendant to one-sixth part of plaintiff's real estate described in her complaint and said answer, accrued more than twenty years before the commencement of this suit, and the defendant became twenty-one years of age more than two years before the commencement of this action.
Briefly stated, the second reply sets up title by prescription in the appellee, and the third and fourth plead the statute of limitations of twenty years. The questions presented by these paragraphs are by no means free from difficulty, nor are we aided in their solution by the decisions of the courts of other States, amongst which there is an irreconcilable conflict. The more we examine them the more incongruous they seem. It is the general rule that the possession of one tenant in common is the possession of all, and for the common benefit of all, and when this condition of things obtains, the statute of limitations does not ordinarily run against any of them. In this State, the rule is so far modified, we think, that if one enter under color of title, claiming the whole to himself, his possession will be adverse to his cotenant.
In English v. Powell, 119 Ind. 93 at 93-95, 21 N.E. 458, it is said:
We also cite Freeman on Cotenancy, etc., section 223: "When one tenant in common is in possession of the whole estate, claiming under a deed purporting to convey the entire estate, he will be deemed to have ousted his cotenants." Nelson v. Davis, 35 Ind. 474; Wright v. Kleyla, 104 Ind. 223, 4 N.E. 16.
It is insisted by counsel for the appellant, that to effect an ouster by a cotenant, there must be an actual, continuous, notorious, distinct, and visible possession; such that a knowledge of its existence must be brought home to the cotenant, and this seems to be the law. 1 Am. and Eng. Encyc. of Law, 233, and notes; Manchester v. Doddridge, 3 Ind. 360; Bowen v. Preston, 48 Ind. 367 (377); Nicholson v. Caress, 76 Ind. 24; Sanford v. Tucker, 54 Ind. 219; Jenkins v. Dalton, 27 Ind. 78.
It occurs to us that the second paragraph of the reply, assailed by the appellant, conforms strictly to this rule by showing that the appellee, and those under whom she claims, have been in the full, open, notorious and exclusive adverse possession of the premises in dispute, under claim of ownership thereof, ever since December, 1865. Such facts, if proved by satisfactory evidence, would constitute an ouster.
It is averred, in this reply, among other things, that the entry and possession were under deeds purporting to convey the entire title, and that the purchaser from Lemuel King, as widower, and said King as guardian of the appellant, paid the then full value of the premises so purchased.
In Freeman on Cotenancy, section 224, the author...
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