McCullough v. Davis

• Citation: 9 N.E. 276,108 Ind. 292
• Parties: McCullough and others v. Davis and others.
• Decision Date: 22 November 1886
• Court: Supreme Court of Indiana

108 Ind. 292

9 N.E. 276

McCullough and others

v.Davis and others.

Supreme Court of Indiana.

November 22, 1886.

Appeal from circuit court, Madison county.

Robinson & Lovett, for appellants.

The demurrer to the second paragraph of appellees' answer should have been sustained. The object of section 2484, Rev. St. 1881, on which the defense is founded, is to preserve the property of a widow, who marries a second time, for the children of the marriage, by virtue of which she received it; but it is not intended to interfere in any way with the alienation of her life-estate. Miller v. Noble, 86 Ind. 527. The judgment in the foreclosure case, to which appellees were parties, settled the validity of the mortgage as to them, and they cannot now collaterally attack it to defeat the rights of an innocent purchaser. Having failed to attack it in that action they are now estopped from so doing. Burk v. Hill, 55 Ind. 419;Gall v. Fryberger, 75 Ind. 98;Hunter v. Burnsville Turnpike Co., 56 Ind. 213;Anderson v. Wilson, 100 Ind. 402. Parol evidence as to what took place at a former trial, to the effect that the land in controversy was set off to appellee Ann Davis as her share as widow of Oscar Eads, was improperly admitted. 1 Greenl. Ev. p. 115, § 86. Parol evidence as to the ownership of such land was also improperly admitted. The court also erred in permitting oral evidence to be given of the contents of the pleadings and decree in the partition case; for, although the record in the clerk's office was lost, a copy could have been obtained, as the case had been appealed to the supreme court.

M. A. Chipman, J. W. Sansberry, Jr., and F. A. Walker, for appellees.

The opinion in the case of Miller v. Noble, 86 Ind. 527, rightly construed, does not sustain appellant's view. The question here involved was not presented in that case. A married woman, holding land by virtue of a previous marriage, cannot alienate the same during a subsequent marriage; cannot alienate the same directly or indirectly, either by deed or mortgage, or by judgment and sale on execution, (Edmondson v. Corn, 62 Ind. 17;Connecticut Mut. Life Ins. Co. v. Athon, 78 Ind. 10;Mattox v. Hightshue, 39 Ind. 95;Sebrell v. Hughes, 72 Ind. 186;Vinnedge v. Shaffer, 35 Ind. 341;Bowers v. Van Winkle, 41 Ind. 432;Wright v. Wright, 97 Ind. 444;Smith v. Beard, 73 Ind. 159;Haskett v. Hazel, 83 Ind. 534;) nor can she be estopped by any act or omission in the consummation of such alienation. Behler v. Weyburn, 59 Ind. 143;Unfried v. Heberer, 63 Ind. 67.

The parol evidence complained of by appellant was introduced only as to matters on which the record in the partition case was silent, and was therefore admissible. Wharton, Ev. §§ 986-988; Bottorff v. Wise, 53 Ind. 32;Roberts v. Norris, 67 Ind. 386. The objections to the admission to other evidence are too uncertain to present any question to this court. Forbing v. Weber, 99 Ind. 588.

Niblack, J.

Action by Neal C. McCullough and three others, constituting the firm of Neal C. McCullough & Co., against Ann Davis and William P. Davis, to recover the possession of 20 acres of land in Madison county. The defendants answered: First, in general denial. Secondly, that in June, 1859, one Oscar F. Eads died seized of the lands described in the complaint and other lands in Madison county, leaving the defendant Ann Davis as his widow, and also children of the marriage, who still survive him as his heirs at law; that afterwards the said Ann intermarried with her co-defendant, William P. Davis, and has ever since continued to be his wife; that after her said intermarriage, that is to say, in the year 1875, by proper proceedings in partition in the Madison circuit court between the said Ann Davis and her husband, and the children and heirs at law of the said Oscar F. Eads, deceased, the lands in controversy were assigned and set off to the said Ann Davis as her one-third part of the lands of which the said Oscar F. Eads died seized; that she, the said Ann, thereupon entered upon and took possession of said lands, that afterwards, on the ninth day of April, 1875, the defendants, Ann Davis, and William P. Davis as her husband, executed a mortgage on the lands in question to one Matilda E. Davis; that thereafter said mortgage was, by a decree of the Madison circuit court, foreclosed, and the said Neal C. McCullough, one of the plaintiffs herein, became the purchaser of such lands at a sheriff's sale upon such decree; that through the said McCullough said lands were afterwards conveyed to the plaintiffs; that such conveyance, so based upon the sheriff's sale, constituted the only claim of title which the plaintiffs had to the lands in suit. A demurrer to this second paragraph of answer being first overruled, the plaintiffs replied in denial, and a trial by the court resulted in a finding and judgment for the defendants.

Questions are only made here upon the overruling of the demurrer to the second paragraph of the answer, and upon the refusal of the circuit court to grant a new trial, as requested by the plaintiffs. In support of the alleged insufficiency of the second paragraph of the answer it is claimed that a purchaser of real estate at sheriff's sale acquires all the interest, whatever that may have been, which the judgment defendant had in the same at the time of the sale, and that, consequently, upon the facts set up in that paragraph of answer, the plaintiffs had succeeded to all the estate theretofore held by Ann Davis in the real estate embraced in the sheriff's deed, and had thereby become at least entitled to the possession, use, and occupation of such real estate during the natural life of the said Ann Davis; citing the case of Miller v. Noble, 86 Ind. 527, as fully sustaining the position thus assumed. But we do not place the construction contended for upon the case so cited. That case simply and only decided that the children of John A. Noble, deceased, took the real estate in litigation to the exclusion of a purchaser at sheriff's sale upon a judgment rendered against the widow after she had married a second time. All that was said in the cause which seemingly sustains the doctrine contended for...