Mason v. Roll
| Decision Date | 03 February 1892 |
| Docket Number | 16,129 |
| Citation | 29 N.E. 1135,130 Ind. 260 |
| Parties | Mason et al. v. Roll, Executor, et al |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
The judgment is reversed, with instructions to grant a new trial and to overrule the motion to strike out the cross-complaint and for further proceedings in accordance with this opinion.
A. F Denny, for appellants.
J. C Green, L. Ritter and E. F. Ritter, for appellees.
The complaint in this case averred, in substance, that Solomon Roll, during life, owned a tract of real estate therein described; that in June, 1889, he died testate, leaving a will, in which he directed the plaintiff, who was named as executor, to sell his real estate to pay certain legacies; the will was duly probated, and subsequently the executor was ordered by the court to sell the real estate as directed in the will; that the defendants, who are certain of the children and heirs of the testator, have notified the executor, and have given out in speeches, that they, as children and heirs of said Roll, have an interest in the real estate, and that they deny the legality of the order for the sale of the real estate, and assert that the plaintiff has no right or authority to sell said real estate; that by their acts, claims and demands they have cast a cloud upon the title of the real estate and upon the plaintiff's right to sell the same. The prayer is that the defendants be brought into court to show cause why the real estate shall not be sold, and that the plaintiff have a decree against the defendants, forever quieting his title as such executor, and that they be forever enjoined from asserting any right, title, claim or demand to the same.
The defendants answered the complaint by a general denial, and a second paragraph, which was subsequently, on motion of the plaintiff, struck out.
Afterward a verified cross-complaint was filed by the appellants against the plaintiff, their co-defendants, and the other heirs of the testator, alleging, among other things, the undue execution of the will, and that the testator was at the time of its execution of unsound mind.
The cross-complainants asked that process issue for the defendants not before the court, and that upon final hearing the will and its probate be declared invalid, and that it be vacated, annulled and set aside.
The plaintiff moved the court to strike this cross-complaint from the files, for the reason that there was no bond filed with it, as required by law.
This motion was sustained and exception taken.
The cause was tried by the court, who found for the plaintiff, and entered a decree establishing the due execution and validity of the will, and quieting the title of the plaintiff, as executor, for the use and benefit of the trust, and forever enjoined and restrained the appellants from asserting any interest in, or right or title to, the real estate, or any part thereof.
The appellees have interposed a motion to dismiss the appeal, which we will notice before examining the questions presented by the assignment of errors.
It is claimed that this appeal is governed by section 2454, R. S. 1881, and section 2455 as amended (Elliott's Supp., section 417). These sections provide that any person considering himself aggrieved by any decision of a circuit court or judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to this court, by filing an appeal bond within ten days after the decision complained of, and filing the transcript in this court within thirty days after filing the bond.
This procedure is applicable to cases where the probate jurisdiction of the court is involved, but does not govern appeals in actions authorized by the code, not involving the exercise of the probate jurisdiction of the court. Koons v. Mellett, 121 Ind. 585, 23 N.E. 95; Simmons v. Beazel, 125 Ind. 362, 25 N.E. 344.
This action is, in its essential features, one to quiet title. Faught v. Faught, 98 Ind. 470 (475); 1 Pomeroy Eq., section 171. Actions to quiet title do not involve the probate jurisdiction of the court, and this action might have been brought in the superior court, which has no probate jurisdiction whatever. The appeal was well taken under section 633, R. S. 1881.
The appellants have waived, by failing to discuss them, all questions except the rulings of the court in striking out the second paragraph of answer, and the cross-complaint.
The action being one to quiet the title to real estate, and the appellants having filed their general denial to the complaint, they were entitled...
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Mason v. Roll
...130 Ind. 26029 N.E. 1135MASON et al.v.ROLL et al.Supreme Court of Indiana.Feb. 3, Appeal from circuit court, Marion county; L. HOWLAND, Judge. Suit by Jonathan B. Roll, executor of the estate of Solomon Roll, deceased, and others, against Eliza J. Mason and others, to quiet the executor's t......