Martin v. Caldwell

• Decision Date: 28 November 1911
• Docket Number: No. 7,348.,7,348.
• Citation: 49 Ind.App. 1,96 N.E. 660
• Parties: MARTIN v. CALDWELL et al.
• Court: Indiana Appellate Court

49 Ind.App. 1

96 N.E. 660

MARTIN

v.CALDWELL et al.

No. 7,348.

Appellate Court of Indiana, Division No. 1.

Nov. 28, 1911.

Appeal from Circuit Court, Hendricks County; J. L. Clark, Judge.

Action by Harvey M. Caldwell and others against Charles F. Martin, guardian, and others.From a judgment sustaining a demurrer to a cross-complaint, Martin appeals.Affirmed.

George W. Piersol, for appellant.Enloe & Pattison, Darnell & Darnell, and Thad S. Adams, for appellees.

HOTTEL, J.

This appeal is from a ruling on a demurrer to a cross-complaint filed in an action begun by appellees to partition the lands described in the cross-complaint.Appellant was made defendant in the court below upon his own petition, and filed his cross-complaint against plaintiff and his codefendants.

The averments of the cross-complaint are in substance as follows: That cross-complainant is the duly appointed and acting guardian of Nancy Groover, deceased, with authority from the Hendricks circuit court to fully and finally settle the estate of said ward.That said ward died intestate, February 24, 1909, the owner of an undivided one-third of real estate in Hendricks county, Ind., particularly described, leaving personal property insufficient to pay the indebtedness against said estate.That it is necessary to sell said real estate to make assets for the payment of the said debts.That said ward, and her husband, James H. Groover, on the 9th day of May, 1899, signed and acknowledged a deed conveying said real estate, which deed is set out entire in said cross-complaint, and describes the same land described in the original complaint and the same land as that in which cross-complainant is claiming the one-third interest, and contains the following provision: “That the undivided one-half of the said above-described lands is hereby conveyed to the Caldwell children as above named and the other undivided half thereof to the Gardner children above named.The grantors James H. Groover and Nancy Groover hereby reserve the possession, use, rents and profits of said real estate so long as either of them shall live.That this deed is not to be delivered to said grantees until after the death of the survivor of the grantors.”That contrary to the express intention of said deed and without the consent, knowledge,or authority of said ward, who held an inchoate interest in said real estate, and who signed and acknowledged said deed with said express reservations, said James H. Groover delivered said deed to Charles F. Martin for the benefit of the grantees therein named.That, by such delivery, the title to said described real estate of the said James H. Groover vested in the said grantees.That said delivery of said deed was not the delivery of said Nancy Groover and did not divest her of her title in and to said real estate or in any manner affect her interest therein.That, on the death of said James H. Groover, said Charles F. Martin caused said deed to be recorded, together with his authority for the delivery of said deed to the grantee, which authority is as follows:

“May 9, 1899.

“I have this day delivered this deed to Charles F. Martin my chosen executor and hereby authorize him to keep possession thereof until the death of the survivor of the grantors, at which time I direct him to deliver the same to the grantees grandchildren mentioned.

“James H. his X mark Groover.”

That said recording of said deed was unauthorized and without the knowledge or consent of the grantors in said deed and vested no title or interest in the grantees therein.That said James H. Groover died testate in Hendricks county, Ind., on the - day of October, 1900, and left surviving his wife and five children.That under and by the terms of his will he sought to confirm his acts in regard to the said deed of conveyance to the said described real estate, and that the said Nancy Groover accepted under his will; but that such acceptance in relation to said described real estate was of no force and effect.Wherefore the defendant prays the court that his ward, Nancy Groover, deceased, be declared the owner of an undivided one-third of the real estate described in the complaint; that said real estate be subjected to the indebtedness of said Nancy Groover, deceased, his costs in this case, and all other proper relief.

[1][2]We think that the demurrer to this cross-complaint was properly sustained for at least two reasons: First: If the deceased ward had any interest in the real estate described in the cross-complaint, her guardian would not be the proper person to assert the interest in the absence of averments in his complaint showing his right to settle such estate under section 3070, Burns' 1908.

A guardian is a creature of statute and must find his authority to sue in the provisions of the statute.Campbell v. Fichter, 168 Ind. 645-648, 81 N. E. 661.

In the absence of authority to settle the estate of his deceased ward under section 3070, Burns' 1908, said guardianship was ended by the death of his ward, and his only duty then remaining was to fully account for and turn over to the proper person the estate of his said ward remaining in his hands.Stumph v. Pleiffer, 58 Ind. 472-476;Masters v. Jones, 158 Ind. 647-652, 64 N. E. 213.

[3] But it is insisted by appellant that a demurrer for want of facts does not raise the question of legal capacity of the plaintiff to sue.This is true; but the complaint must show a cause of action in the party suing...