Knepper v. Eggiman
| Decision Date | 26 January 1912 |
| Docket Number | 21,969 |
| Citation | 97 N.E. 161,177 Ind. 56 |
| Parties | Knepper et al. v. Eggiman et al |
| Court | Indiana Supreme Court |
From Superior Court of Allen County; Owen N. Heaton, Judge.
Suit by David Knepper and wife against Mary E. Eggiman and others. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Affirmed.
Walpole G. Colerick, for appellants.
Richard K. Erwin, for appellees.
The sole question presented in this case is the sufficiency of a complaint to which a demurrer for want of facts was sustained in the court below.
The complaint discloses that Caleb and Margaret Knepper were husband and wife, and appellants and appellees except those who are joined as husbands or wives, are the sole heirs at law of said Caleb and Margaret, the latter having died on May 2, 1907, and said Caleb on December 10 1907; that said Caleb and Margaret jointly or severally owned about 150 acres of land in Allen county, and lots in the city of Fort Wayne--all of which are particularly described--and also personal property of great value, the amount not being stated; that after the death of the parents the children asserted claims in their favor respectively against the respective estates of their parents, for various sums and for services rendered or claimed to have been rendered by them respectively to their respective parents during their lives; that no administration has been had on the estate of either parent, and on February 8, 1908, the three children--Daniel Knepper, Isabelle and Mary Eggiman, with the husbands of the two latter--for the purpose of effecting a family settlement or compromise in connection with the division of the property, real and personal, left by their parents, met at a law office, and effected a family settlement and compromise of all said matters and controversies under and by the provisions of which, said Daniel et ux, and said Isabelle and her husband were to execute to said Mary a deed of conveyance for certain described lands, amounting to 110 acres; and said Mary and her husband were to execute to said Daniel a quit-claim deed for a described thirty acres of land, and said Mary and her husband were to execute to said Isabelle a mortgage on certain described real estate to secure the payment of a note for $ 500, executed, or to be executed, by said Mary and her husband, which was to be given for the purpose of equalizing the shares of the three children in the estate of their said parents; that in accord with such agreement the deeds, note and mortgage were that day prepared by the lawyers, and an instrument in writing in triplicate, signed by the three children, was made in words and figures as follows:
That a copy of said instrument was delivered to each of the parties, and is now in their possession; that the deed which was to be executed by Daniel et ux and Isabelle Eggiman and her husband to Mary Eggiman is set out, and bears acknowledgment of February 8, 1908; that the deed from Mary and her husband to Daniel, prepared by the attorneys, is set out; that it was not executed by the grantors and is in the possession of the attorneys, who also hold the deed acknowledged by Daniel and Isabelle, and who were authorized to deliver said deeds to Mary, when she and her husband should sign, acknowledge and execute the deed so prepared; that the note for $ 500 and the mortgage to secure it were delivered to the mortgagee, and are now in her possession; that the deeds were not executed February 8, 1908, for the reason that the wife of Daniel was not present, and it was arranged that as soon as her signature could be acquired the matter should be closed, and on February 14, appellee Mary was notified that the deeds were ready for delivery; that said Mary and her husband, without just cause, on request refuse to execute the deed to Daniel, which it is necessary to do to carry out the compromise and family settlement which is alleged to be fair and just to all in interest, and founded on a valuable consideration, to avoid a multiplicity of suits and unnecessary expense; that Daniel is the equitable owner of the real estate, and the other parties defendant, Mary and Isabelle and their husbands, are claiming some right therein which is unfounded and casts a cloud on the title.
Prayer for specific performance, and on failure that a commissioner be appointed to convey, and that the title be quieted in Daniel.
The plaintiffs are Daniel Knepper and Katy Knepper, his wife, and they assign errors jointly and severally. It is not averred that Katy Knepper had any interest, either legal or equitable, in the land, and it is not alleged that the parents of the parties in interest owned the land at the time of their death, or that the land was to be conveyed under the contract to Daniel and Katy, or that said Mary and her husband had any interest to convey, or that the parties were tenants in common.
The sufficiency of the complaint is attacked because of no showing of interest in Katy Knepper; because the complaint is predicated on an oral contract for an exchange of an interest in real estate; because the contract alleged as a written one is not joined in by the husband, and because it is not averred that Mary Eggiman had any interest in the land, or that it was owned by either ancestor at their death.
As to the first proposition, the general rule is, that a complaint to withstand a demurrer for want of facts must state a good cause of action as to all who join in it. Deane v. Indiana Macadam, etc., Co. (1903), 161 Ind. 371, 376, 68 N.E. 686; Frankel v. Garrard (1903), 160 Ind. 209, 212, 66 N.E. 687; Brunson v. Henry (1894), 140 Ind. 455, 459, 39 N.E. 256; Brown v. Critchell (1887), 110 Ind. 31, 35, 7 N.E. 888, 11 N.E. 486; Halstead v. Coen (1903), 31 Ind.App. 302, 305, 67 N.E. 957.
Unless this complaint falls within some exception to the general rule it is insufficient for that reason.
Such an exception is raised from the marital relation by reason of the statutory rights of married women and married men. The wife was not a necessary party but she was a proper party, as having an interest with her husband in the relief demanded. McIntosh v. Zaring (1898), 150 Ind. 301, 49 N.E. 164; Burnett v. Milnes (1897), 148 Ind. 230, 235, 46 N.E. 464; Lake Erie, etc., R. Co. v. Priest (1892), 131 Ind. 413, 31 N.E. 77; Atkinson v. Mott (1885), 102 Ind. 431, 26 N.E. 217; Roller v. Blair (1884), 96 Ind. 203; ...
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