Kitts v. Willson

• Decision Date: 18 December 1894
• Docket Number: 16,949
• Citation: 39 N.E. 313,140 Ind. 604
• Parties: Kitts v. Willson et al
• Court: Indiana Supreme Court

39 N.E. 313

140 Ind. 604

Kitts v. Willson et al

No. 16,949

Supreme Court of Indiana

December 18, 1894

Petition for a Rehearing Overruled Mar. 22, 1895.

From the Jennings Circuit Court.

The judgment is affirmed.

E. P Ferris and W. W. Spencer, for appellant.

C. H Wilson and J. D. Miller, for appellees.

OPINION

Howard, J.

This was an action in ejectment and for damages. There have been numerous controversies in relation to the real estate in dispute, all originating in a conveyance of the land, made January 13, 1864, by David H. Kitts, since deceased, and the appellant, then his wife. The litigation has been almost continuous since 1868, this being the seventh appeal to this court. Cravens v. Duncan, 55 Ind. 347; Duncan v. Cravens, 55 Ind. 525; Cravens v. Kitts, 64 Ind. 581; Kitts v. Willson, 89 Ind. 95; Kitts v. Willson, 106 Ind. 147, 5 N.E. 400; Kitts v. Willson, 130 Ind. 492, 29 N.E 401.

The facts in the present case, as found by the court, are briefly as follows: Appellant and appellees claim title from David H. Kitts.

1. On said 13th day of January, 1864, Kitts and his wife, the appellant, conveyed the land by warranty deed to James H. Cravens for the stated consideration of twelve hundred dollars, subject to a mortgage for one hundred and thirty-nine dollars, and on October 31, 1873, Cravens and wife, by like warranty, conveyed the land to the appellee, William D. Willson, in consideration of twenty-five hundred dollars, nine hundred being paid in cash. On January 13, 1874, William D. Willson and wife conveyed the undivided one-fourth of the land to his coappellee, Thomas E. Willson. All these deeds were duly recorded within fourteen days after their execution. The Willsons went immediately into possession of eighty acres of said land, and on February 2, 1875, Cravens placed them in possession of the rest of it, and they have ever since remained in the exclusive possession of the same.

2. David H. Kitts died October 14, 1873. At the time of his death he was living on the land with his wife, the appellant, and after his death she continued to reside thereon until February 2, 1875, when she was dispossessed by Cravens, as aforesaid, in an action before a justice of the peace, which was appealed to the Ripley Circuit Court and judgment dispossessing her rendered in that court.

3. On October 26, 1868, John Mullan recovered judgment in the common pleas court of Ripley county against David H. Kitts and one Walter Bagot for $ 339.50, not collectible without relief from valuation and appraisement laws. On April 9, 1869, an execution issued on said judgment and was levied on the lands here in dispute as the property of Kitts, and the land was sold by the sheriff and bid in by Mullan for two hundred dollars, without having been offered in parcels and without appraisement. The land was then of the value of twenty-four hundred dollars. Mullan paid the costs, $ 87.61, and receipted on the execution for $ 112.39, and then received from the sheriff a certificate of purchase. The execution was returned unsatisfied, and together with the return was duly entered of record in the execution docket November 3, 1869. Mullan afterwards assigned his sheriff's certificate and his unsatisfied judgment to his son-in-law, Harden Duncan.

On September 22, 1870, Duncan received a sheriff's deed for the land, which deed was placed on record July 19, 1871. Duncan, on May 20, 1870, caused another execution to be issued on the judgment and levied on a part of said land, and also on lands of the other judgment defendant, Bagot.

The lands were appraised in this case. Duncan bid in the Kitts land for more than two-thirds of the appraisement, and bid $ 136.72 for the rents and profits of the Bagot land, being also more than two-thirds of the appraisement. He then paid the costs, and placed the receipt of Mullan on the writ for $ 258.72, by the purchase of the land, but proceeded no further with said purchases and got no possession thereunder.

4. On March 17, 1874, Duncan brought an action against James H. Cravens, William D. Willson and the administrator of the estate of John Mullan, then deceased, to set aside the deed made January 13, 1864, by David H. Kitts and appellant, his wife, as being fraudulent and void as against the Mullan judgment, assigned to Duncan as aforesaid. The jury found a verdict in that case for the plaintiff Duncan; and, in answer to interrogatories, they found specifically that Kitts made the conveyance to Cravens with an intention to hinder, delay or defraud his creditors; that Cravens had knowledge of Kitts' intention at the time he took the conveyance; that $ 1,600 of the purchase-money was still due from Willson to Cravens at the commencement of the action; and "that the amount of principal, interest and costs due the plaintiff Duncan upon the judgment rendered in favor of John Mullan against David H. Kitts and Walter Bagot is principal, $ 339.50; costs, $ 66; interest, $ 122.22," or, in all, $ 527.72. The court entered judgment accordingly; that the conveyance made by David H. Kitts to James H. Cravens, January 13, 1864, for said land, "is fraudulent and void as to the judgment set forth in the complaint in said action"; and "that the plaintiff, Duncan, recover of the defendants, James H. Cravens and William D. Willson, the sum of $ 527.72, the amount of the debt found due the plaintiff, and also his costs in said action laid out and expended, and that sufficient of said lands should be sold upon an execution to be issued thereon, without relief from valuation and appraisement laws, to satisfy the debt and damages of the plaintiff recovered in said action." In the trial of said cause the execution first issued on the Mullan judgment, as mentioned in finding three, having been introduced in evidence, Duncan, to show the invalidity of the sheriff's sale on said execution, introduced and gave evidence to the jury to prove that the land levied on and sold had not been appraised.

On appeal to the Supreme Court, this judgment was affirmed on a remittitur being entered by Duncan for $ 137.87, as a credit on the judgment by reason of the sale of the rents and profits of the Bagot land. The remittitur was entered in this court, and the judgment thereupon affirmed. On August 21, 1877, Willson paid on the judgment $ 50, and on September 20, 1877, he paid the further sum of $ 610.83, in full satisfaction of the judgment; and "Duncan receipted therefor on the face of the judgment, on the order-book of the Ripley Circuit Court, as in full of the judgment, principal, interest and costs." See Cravens v. Duncan, supra, 55 Ind. 347.

5. Harden Duncan at no time made any claim of ownership to the land in question, nor did he assert any claim whatever against the same, after the payment of said judgment as in finding four set out. He resided on a farm within half a mile of the land in controversy, from 1874 to 1892, and knew that the Willsons were in possession of the same, and claiming to be the owners thereof, and saw them frequently. On the 23d day of April, 1887, Duncan executed to the appellant a quitclaim deed for the land, for a consideration, as stated in the deed, of $ 150, but in fact without any consideration whatever. The appellant is not related to Duncan by blood or marriage.

6. It is found by the court that until May 25, 1887, the Willsons, appellees, had no actual knowledge that a sheriff's deed had been executed on said execution sale to Duncan, or that he made any claim to the land, except to recover the amount of the Mullan judgment.

7. On February 18, 1880, Sarah Kitts, the appellant, brought an action for partition of said land, claiming to be one of the owners as widow of David H. Kitts, and as mother of two of her deceased children. Appellees were made defendants to this action, and filed their cross-complaint claiming ownership of the land, and asking to have their title quieted. The suit was decided in favor of the appellees May 4, 1892, the court finding that the appellant was affected by the fraud of her husband, David H. Kitts, in making the deed of January, 13, 1864, to Cravens. That judgment was affirmed by this court. See Kitts v. Willson, supra, 130 Ind. 492.

8. The present action was...