McGrew v. Grayston

• Decision Date: 21 November 1895
• Docket Number: 17,598
• Citation: 41 N.E. 1027,144 Ind. 165
• Parties: McGrew v. Grayston et al
• Court: Indiana Supreme Court

41 N.E. 1027

144 Ind. 165

McGrew v. Grayston et al

No. 17,598

Supreme Court of Indiana

November 21, 1895

Petition for Rehearing Overruled February 12, 1896.

From the Huntington Circuit Court.

Appeal dismissed.

J. B Kenner and U. S. Lesh, for appellant.

H. B Sayler, S. M. Sayler and J. M. Sayler, for appellees.

OPINION

McCabe, J.

--The appellee, Mary C. Grayston, sued the appellant for partition. The court overruled a demurrer to the complaint for want of sufficient facts. The defendant answered by a general denial and affirmative answers, to which the plaintiff replied by a general denial and several affirmative replies. A trial of the issues by the court resulted in a special finding of the facts at the request of the defendant, upon which the court stated certain conclusions of law favorable to the plaintiff, and upon which the court rendered judgment of partition in accordance with the prayer of the petition, over appellant's motion for a new trial. There was no exception to the conclusions of law. No error is assigned thereon.

The errors assigned are on the action of the court in overruling the demurrer to the complaint and overruling the appellant's demurrer to the second, third and fifth paragraphs of appellee's reply.

We are met by a verified answer in bar of the appeal by the appellees. After the report of the commissioners in partition had been confirmed, and the judgment rendered and before the motion for a new trial had been passed on, it was made to appear that the plaintiff, Mary C. Grayston, had sold and conveyed the portion of the real estate set off to her to Daniel Kitch. The court thereupon sustained a motion to substitute said Kitch as plaintiff.

He filed a plea in bar of the motion for a new trial, which plea, on motion, was struck out.

The answer in bar of the appeal states that after the rendition of the judgment of partition, on October 24, 1894, the commissioners to make partition were selected by agreement of the parties and appointed by the court accordingly; that appellant filed exceptions to their report, which were tried by the court, overruled and judgment of partition rendered. After said final judgment, to-wit: on December 15, 1894, the appellant sold the lands set off to him to Jacob Boos for the sum of $ 10,000, and he conveyed the same to said Boos by warranty deed, and put him in possession thereof. On December 17, 1894, said Kitch, well knowing all the facts herein alleged and relying on them as having been done in good faith, purchased of the appellee, Grayston, the lands, set off to her for the full value thereof, to-wit: $ 5,400.00, and said Mary C. Grayston, her husband joining, conveyed her said portion of said lands so set off to her to said Kitch; that she had for years before the rendition of said judgment, claimed to own the undivided one-third of the real estate described in the complaint, which claim was open and notorious.

Wherefore appellees say that the appellant ought not to prosecute an appeal of said cause or in any way call in question the title and ownership of the land so acquired by the substituted appellee, Daniel Kitch.

The only fact alleged in this answer in bar of the appeal which has any resemblance to matter in bar of an appeal is that relating to the sale by the appellant of the portion of the lands set off to him after the judgment confirming the partition.

The right of appeal, though conferred by statute, may be forfeited and waived in many ways. It is an established principle of law that a party cannot prosecute an appeal and thereby seek to reverse a judgment, the benefits of which he has accepted voluntarily and knowing the facts. After such acceptance, he is estopped to reverse the judgment on error, and the same may be treated as a release of errors. Newman v. Kiser, 128 Ind. 258, 26 N.E. 1006; Sterne v. Vert, 108 Ind. 232, 9 N.E. 127; Baltimore, etc., R. R. Co. v. Johnson, 84 Ind. 420; Patterson v. Rowley, 65 Ind. 108; State, ex rel., v. Kamp, 111 Ind. 56, 11 N.E. 960; McCracken v. Cabel, 120 Ind. 266, 22 N.E. 136; Sterne v. Vert, 111 Ind. 408, 12 N.E. 719; Clark v. Wright, 67 Ind. 224; 2 Ency. of Pl. and Pr. 174-175, and authorities there cited; Glassburn v. Deer, 143 Ind. 174, 41 N.E. 376.

This rule is founded on the principle that a party in a court of justice will not be allowed to acquire advantages by assuming inconsistent positions.

The case of Sterne v. Vert, 108 Ind. 232, 9 N.E. 127, supra, was something like the present case. There it was sought to foreclose a mortgage on three separate tracts of land. The defendants resisted the foreclosure as to one tract only. Such resistance resulted in the defeat of the foreclosure as to that tract, but there was a decree of foreclosure as to the other two tracts. From that decree the plaintiff in that case appealed to this court. The appellees thereupon filed in this court a verified special answer in bar of the errors assigned, alleging therein that after the judgment and decree were rendered in the trial court, the appellant caused a copy of the decree and order of sale to be issued out of the office of the clerk of the circuit court, and placed them in the hands of the sheriff, who proceeded to advertise...