Martin v. Neal

• Decision Date: 30 October 1890
• Parties: Martin et al. v. Neal et al.
• Court: Indiana Supreme Court

125 Ind. 547

25 N.E. 813

Martin et al.

v.Neal et al.

Supreme Court of Indiana.

Oct. 30, 1890.

Appeal from circuit court, Boone county; John A. Holman, Special Judge.

Mitchell, J., dissenting.

Abbott & Ralston, for appellants. T. W. Lockhart, Stephen Neal, and Wesner & Wesner, for appellees.

Olds, J.

This action was brought by the appellees, Laura A. Neal and Stephen Neal, her husband, against the appellants, Jonathan O. Thompson and Ulysses S. Thompson, for the possession of certain real estate described in the complaint, and for damages for the detention thereof; and afterwards, appellant Thomas H. Martin, administrator de bonis non of the estate of George Kernodle, deceased, was, by order of court, made a party. Issues were joined on the complaint. It appears from the record that George Kernodle died testate, the owner of the land in controversy, leaving surviving him the appellee Laura A. Neal, his widow, who afterwards married her co-appellee; that said George Kernodle had children by other marriages, and, as the issue of the marriage with Laura A., he left surviving four children, viz., Joanna, Charles, Harvey, and Jennie. On January 22, 1874, Kernodle made a will by which he devised to his wife, Laura A., all his property, real and personal, after the payment of funeral expenses and just debts, to have, use, and hold the same until their youngest child arrived at the age of 21 years, at which time the wife to take one-third of all his property, real and personal, and disposing of the remainder, giving to each of his children by Laura A. $1,000, balance to be divided equally between them and his son, John M. If the wife takes by the will she takes by this provision, the land in controversy being part of the home-farm. Afterwards, on the 24th day of March, 1879, Kernodle made a codicil to his will, in which it was stated that he had become indebted; and by the codicil he devised certain of his real estate other than the home-farm and that in controversy to his wife in fee-simple that she might sell the same and pay his debts. Kernodle died, May 15, 1879, and his widow married Stephen Neal May 13, 1880. All of the children are still living. The appellee Laura A. sold the land devised to her in fee-simple, and applied the proceeds to the payment of debts. She also sold the personal property, receipting for $499.55 of the same as widow, and applied the remainder to the payment of debts. The proceeds of such real estate devised for the payment of debts, and the amount received from the sale of personal property, being insufficient to pay the debts, she then qualified as administratrix, and filed a petition setting forth her doings prior to that time, and asked for an order for the sale of the home-farm, consisting of 160 acres, to pay the balance of the debts, alleging that it could not be divided without injury, and asking that the whole tract be ordered sold, and that she be permitted, after paying the debts of the estate, to invest the residue of the proceeds arising from the sale in other real estate, either in Indiana or Iowa; and such real estate so purchased to be disposed of according to the provisions of said will when said youngest child became 21 years old. The court on this petition did not order the sale of the whole tract, but ordered the sale of 40 acres of the same. She, as such administratrix, made a contract for the sale of the 40 acres, which was afterwards perfected by the administrator de bonis non, and the proceeds applied, by order of the court, to the payment of a mortgage on the farm. Laura A., as such administratrix, made a report, also giving an account of her management of the estate before her appointment, and resigned her trust; which report was approved, and her resignation accepted. The appellee Laura A. before resigning moved to Iowa. She also filed a supplemental petition, asking for the sale of all the land, and for an order investing the funds in excess of amount required to pay debts as requested in her original petition; and this supplemental petition was still pending when she resigned. Prior to her appointment as administratrix, she had purchased and received a deed for all the interest of John M. Kernodle in the estate of his father. The appellant Thomas H. Martin was appointed administrator de bonis non of said estate after the resignation of Laura A., and on the 27th day of February, 1884, he filed a petition asking an order for the sale of all of said farm, and that the proceeds remaining after the payment of debts be distributed to the devisees, or invested in real estate, as the court might direct. Notice was given, and on the 20th day of February, 1885, the court made an order for the sale of the real estate at private sale for not less than the appraised value, and on terms named in the order. Martin being unable to sell the real estate, on the 26th day of June, 1885, he filed an application in said court in said cause, setting forth the fact that he was unable to sell the real estate, and recommending that an order be made authorizing him to borrow $1,400, and mortgage said real estate to secure the same, for the purpose of redeeming the land from tax-sales, and paying the debts of the estate, and for an order allowing him to take possession of the same, and lease the same. Without any notice as to the filing or pendency of this petition, the court, on the same day it was filed, made an order authorizing the said administrator de bonis non to mortgage said real estate, to take possession of and lease the same for a period not to exceed five years. Afterwards, on the 10th day of September, said administrator filed another petition, asking for a change in the order authorizing him to mortgage the real estate, and, without any notice having been given of the filing or pendency of such petition, the court, on the same day it was filed, made an order authorizing the administrator to negotiate a loan at 8 per cent. interest, and to pay a commission to a broker to obtain such loan. Afterwards, the administrator reported the making of such loan, and the mortgage executed to secure the same, to the court; also, that he had leased the premises to tenants for the period of one year; and the court approved the loan, mortgage, and lease. Before the appellee Laura A. moved to the state of Iowa, she leased the land to a tenant, who was in possession of the same when possession was claimed and taken by Martin, administrator. There was a finding and judgment for the appellee against Martin for the value of one year's rent, ($409,) and for the possession of the real estate. The appellants filed a motion for new trial, assigning the following reasons: First. The assessment of the amount of recovery is erroneous, being too large. Second. The decision of the court is not sustained by sufficient evidence. Third. The decision of the court is contrary to law. Fourth. Because the damages are excessive.

The first question presented by the record is as to the validity of the order of the court authorizing the administrator de bonis non to mortgage the real estate to raise money to pay the debt, and to take possession of and lease the same for a term not exceeding five years. If this order is valid and binding on the appellee, or is of such validity as to withstand a collateral attack, then the appellee had no right to the possession or to damages for the detention. It is contended by counsel for the appellant that it is valid; that at least it...