McPheeters v. Wright

• Decision Date: 26 May 1890
• Docket Number: 14,276
• Citation: 24 N.E. 734,124 Ind. 560
• Parties: McPheeters v. Wright
• Court: Indiana Supreme Court

24 N.E. 734

124 Ind. 560

McPheeters v. Wright

No. 14,276

Supreme Court of Indiana

May 26, 1890

Petition for a Rehearing Overruled Sept. 17, 1890.

From the Noble Circuit Court.

Judgment reversed, with costs, with directions to grant a new trial.

R. P Barr, for appellant.

H. G Zimmerman, for appellee.

OPINION

Berkshire, C. J.

This is an action in ejectment. The appellee was the plaintiff and the appellant the defendant in the court below.

The appellant filed a cross-complaint, to which a demurrer was addressed, which was sustained by the court, and the appellant reserved an exception.

The main action having been put at issue the same was submitted to the court for trial, and after the evidence had been heard the court returned, at the request of the parties, a special finding.

The only alleged errors which we are called upon to consider are those which call in question the ruling of the court in sustaining the demurrer to the cross-complaint and its conclusions of law upon the facts found.

As our reasoning and conclusion as to the special finding are alike applicable to the action of the court in sustaining the demurrer to the cross-complaint, we will confine ourselves to the special finding.

After entitling the cause, the following is the special finding of the court:

"The court, having been by the plaintiff and defendant requested to find specially the facts and conclusions of law thereon in accordance with section 551 of the code of this State, finds specially the following facts:

"1. That the lands described in the complaint to wit, the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter of section 16, township 33 north, of range 10 east, in Noble county, Indiana, were, on the 12th day of April, 1847, part of the congressional school lands of said township.

"2. That on the said day the said lands were, by the county auditor and the school commissioner of said county, duly and legally sold to one Adam Dingman; the former parcel for $ 229 and the latter tract for $ 160, and that at the time thereof the purchaser paid down $ 57.25, being one-fourth of the purchase-money, and also paid $ 12.02, one year's interest in advance.

"3. That on the last day named the auditor and school commissioner executed and delivered to said purchaser a certificate of purchase for each parcel separately, which certificates of purchase were, on the said 12th day of April, 1847, recorded by the auditor in book A of commissioner's record, on pages 555 and 556.

"4. That, on the 3d day of October, 1853, said purchaser assigned each of said certificates of purchase to one Nicholas Skeels, which assignment was duly acknowledged before the county auditor.

"5. That said instalments of annual interest on each parcel were paid by the said Dingman until the assignment in 1853, and then by the said Skeels until his decease, in the year 1854, each successively occupying and making valuable improvements on said land, and thereafter by Julia A. Skeels, the widow of said Nicholas Skeels, until the year 1867, when she died.

"6. The interest instalments on said purchase-money remained unpaid on the 5th day of April, 1883, for the years, to wit, 1877, 1878, 1879, 1880, 1881, 1882, 1883, the interest having been paid each year in advance up to and including April, 1876, the payment made in April, 1876, being for the year ending April, 1877.

"7. That, on the 26th day of February, 1883, the said annual instalment of interest for said several years remaining unpaid, and certain portions of the principal being due and unpaid, the county auditor and county treasurer declared the original contract of purchase and sale forfeited, and immediately on said day caused said lands, and each parcel thereof, to be separately advertised for sale on the 5th day of April, 1883, at the court-house door, in Albion, said Noble county, by publishing notices of said sale, one notice for each of said parcels separately, duly signed by the auditor and treasurer, and published in the Weekly News, a newspaper of general circulation, printed and published in said county, for four successive weeks, the last of which publications was one week prior to the date of the sale, and that a copy of each notice of the sale of each parcel was also posted at the court-house door of said county four weeks and more prior to the day of sale, and also that a copy of each one of said notices of the sale was posted in three public places in Green township, said county of Noble, being the township in which said lands to be sold were situated.

"8. That the notice for the sale of the northwest one-fourth of the northeast one-fourth recited that there was due on the principal, $ 51.75, on unpaid interest instalments, $ 24.84, in all, $ 76.59, to which was to be added all costs and damages at date of sale, and that the notice for the sale of the northeast one-fourth of the northwest one-fourth recited that the principal due thereon was $ 120, unpaid interest, $ 57.60, in all, $ 177.60, to which were to be added costs and damages to day of sale.

"9. That on the day of sale, to wit: April 5th, 1883, there was due on the N.W. one-fourth of the N. E. one-fourth, the following: Amount of principal due, $ 51.75, interest due, $ 24.84, printer's fees, $ 7.10, and treasurer's fees, $ 2, five per cent. damages, $ 3.82, sheriff's fees, $ 2.80, certificate of purchase and recording same, $ 3; total, $ 95.21.

"10. That on the day of the sale there were due on the N. E. one-fourth of the N.W. one-fourth, the following amounts: Of principal due, $ 120; interest due, $ 57.60; printer's fees, $ 6.75; auditor's and treasurer's fees, $ 2; five per cent. damages, $ 8.88; sheriff's fees, $ 2.80; certificate of purchase and recording, $ 3; total, $ 201.03.

"11. That on the 15th day of April, 1883, in pursuance of said notice the county auditor sold the said N.W. one-fourth of the N. E. one-fourth of said section 16, at the court-house door of Noble county, in the town of Albion, Noble county, Indiana, at public auction, to the plaintiff, John B. Wright, for $ 700; and at the same time and place said auditor, in like manner, sold the N. E. one-fourth of said section to the plaintiff for $ 800, the county treasurer attending thereat, and taking an account thereof.

"12. That on said purchase-money the purchaser, Wright, immediately upon such sale, paid down the sum of $ 175 on the purchase of the N.W. one-fourth of the N. E. one-fourth, and the further sum of $ 42 interest on the purchase-money in advance; and the said Wright also, upon the purchase of the N. E. one-fourth of the N.W. one-fourth immediately paid down the sum of $ 200, and the further sum of $ 48 interest in advance on the purchase-money.

"13. That immediately upon the sale and payment of the one-fourth of the purchase-money and interest, the county auditor and county treasurer executed and delivered to the plaintiff, as such purchaser, a certificate of purchase for the northwest quarter of the northeast quarter of said section, which was by the auditor duly recorded in commissioner's record book N, page 240, and also in like manner and at the same time, the said county auditor and county treasurer executed and delivered to said purchaser, Wright, a certificate of purchase for the northeast quarter of the northwest quarter of said section 16, which was by the county auditor recorded in commissioners' record, in book N, page 239.

"14. The court further finds that said Nicholas Skeels died about the year 1854, leaving surviving him several children by different wives; that the plaintiff's mother was the last wife of said Nicholas, by whom he had one child living at the decease of said Nicholas; that by the last will of said Nicholas Skeels, executed on the 18th day of May, 1854, and which will was, upon the 21st day of June, 1854, duly proven and admitted to probate in the office of the clerk of the common pleas court of said Noble county and duly recorded therein on pages 205 and 206 of the record of wills, he, the said Nicholas, devised the lands in the complaint described to his widow by the following provision therein contained, to wit: 'I give and bequeath to my beloved wife, Julia Ann Skeels, all my right, title and interest in the northeast quarter of the northwest quarter of section 16, and the northwest quarter of the northeast quarter of said section, both in town. 33 north, of range 10 east, in the county and State aforesaid, supposed to be eighty acres, for her own benefit during the term of her natural life, or so long as she remains my widow.'

"15. That said Nicholas Skeels, at the time of his decease, was residing on said land, and after his decease his said widow, Julia Ann Skeels, with her daughter, who was then a minor and was the youngest of said children of said Nicholas Skeels, continued to reside on and occupy said premises, said widow residing thereon until her death, in 1867; that said daughter resided with her mother as a member of her family until after her majority, when she was married to one Abraham Schedule; that after her said marriage she and her husband resided on said premises and farmed the same for -----, and the said Schedule paid the widow rent therefor; and that one of the sons of said Nicholas Skeels also for a time resided on said premises, farmed the same and paid the widow rent therefor; that said widow paid the taxes accruing on said land from the year 1854 to the year 1867, and paid the several instalments of interest accruing on said contract of purchase of April, 1847, up to her death, and that there is no other evidence as to whether or not she elected to take under the provisions of said will.

"17. That since the death of said Julia...