Morarity v. Calloway

• Court: Indiana Supreme Court
• Writing for the Court: Coffey, C. J.
• Citation: Morarity v. Calloway, 134 Ind. 503, 34 N.E. 226 (Ind. 1893)
• Decision Date: 17 May 1893
• Docket Number: 16,313
• Parties: Morarity v. Calloway et al

34 N.E. 226

134 Ind. 503

Morarity v. Calloway et al

No. 16,313

Supreme Court of Indiana

May 17, 1893

From the Tipton Circuit Court.

Judgment affirmed.

R. B Beauchamp, W. W. Mount, G. H. Gifford and J. M. Fippen, for appellant.

J. N Waugh, J. P. Kemp, E. B. Goodykoontz and G. M. Ballard, for appellees.

OPINION

Coffey, C. J.

This was an action by the appellant against the appellees to have a lien declared and enforced against the land described in the complaint, for certain sums of money paid by him for taxes, and for improvements made on the land by way of ditches. Upon the issues formed on the several pleadings in the cause, the court found for the appellees. It is assigned as error that the court erred in denying the appellant a new trial.

The only matter discussed by counsel relates to the question as to whether the appellant is estopped from asserting the lien which he sets up in his complaint.

It appears from the evidence in the cause that the land described in the complaint was conveyed by the appellees King and King to the appellant on the 3d day of June, 1879. King and King, at the time of the conveyance, were husband and wife, and held the land by entireties. At that date Phebe King, the wife, was a minor, under the age of twenty-one years. She became twenty-one years of age on the 4th day of April, 1881, and at once repudiated the conveyance made by her and her husband, and served upon the appellant a written notice of her election to avoid the deed on account of her minority at the date of its execution. She subsequently brought suit in the Clinton Circuit Court to set aside the deed and quiet her title to the land, in which action she was successful. After quieting her title she and her husband conveyed the land to the appellee Calloway. During the time the appellant held the land under the deed from King and King, he purchased the same at a sale for delinquent taxes. He also performed labor in the construction of a public ditch, during that period, for which the land had been assessed.

These are the matters for which he seeks to recover in this action.

It is contended by the appellees that appellant is estopped by the decree quieting title from now asserting any lien on the land, existing prior to the date of such decree. While the appellant contends that, as the primary object of that suit was to avoid the deed executed by Phebe King while a minor no such estoppel...