Myers v. Brane
| Decision Date | 10 November 1944 |
| Docket Number | 17263. |
| Citation | 57 N.E.2d 594,115 Ind.App. 144 |
| Parties | MYERS et al. v. BRANE. |
| Court | Indiana Appellate Court |
On Taxation of Costs Nov. 16, 1944.
Appeal from Jay Circuit Court; Byron G. Jenkins, Judge.
against appellants with instructions to deduct them from appellants' share of proceeds of partition sale.
Francis A. Shaw, of Muncie, Bowen, Mendenhall & Hunter, of Winchester, and Roscoe D. Wheat, of Portland, for appellants.
William A. Gutheil, of Winchester, and James J. Moran, of Portland for appellee.
This is an action to partition certain farm lands in Randolph County by the sale thereof and a division of the net proceeds according to the interests of the various owners. On change of venue the cause was tried to the Jay Circuit Court without the intervention of a jury. The facts were found specially and conclusions of law favorable to the appellee were stated thereon, appropriate judgment was entered and, over the appellants' motion for a new trial, this appeal was perfected. The appellants' complain that the court erred in each of its conclusions of law and in overruling their joint and several motion for a new trial which charges that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The undisputed facts indicate that on October 29, 1940, and for some years prior thereto, the appellee Edna F. Brane and one Fannie O. Hollowell were the owners in fee simple, as tenants-in-common, of 72 1/2 acres of farm lands in Randolph County. The buildings and their out lots are located on the east side of side tract and consist of an eight room house two barns, a corn crib, chicken house and granary. Fannie O. Hollowell died on October 20, 1941, leaving a last will and testament by the terms of which she devised her undivided one-half interest in the real estate above described to the appellants Quimba O. Hollowell and Conchita L. Myers, subject however to a life estate in her husband, the appellant Abner Leroy Hollowell, and subject also to the expenses incident to the last sickness and burial of the said life tenant. For some time prior to the commencement of this suit the farm buildings had been occupied by one Cora Reynard who paid cash rent therefor, and the fields had been cultivated by one Woody Gause upon a crop sharing basis. The net proceeds of the farm were divided equally between the appellee as the owner in fee simple of the undivided one-half of the real estate and the appellant Abner Leroy Hollowell as the owner of life estate in the other half.
On such a state of facts the appellants assert that if a partition in kind could not be had, as the court found, then partition by sale could not be decreed because such procedure would result in the nullification of the terms of Fannie O. Hollowell's will and set to naught her intended disposition of the real estate in question. We think this position would be well taken if the appellee had acquired her title and interest in said real estate under the provisions of Fannie O. Hollowell's will. The courts of all jurisdictions have uniformly held that partition will not be awarded in violation of a condition or a restriction imposed upon an estate in real estate by a person through whom the one asking partition claims. Kepley v. Overton, 1881, 74 Ind. 448; Jones v. Jones, 1926, 84 Ind.App. 176, 149 N.E. 108, 150 N.E. 65. See also 47 C.J., Partition, § 119, and cases cited. In our own State we have statutory affirmation of this rule in the following language: 'Such court shall not order or affirm partition of any real estate contrary to the intention of a testator, expressed in his will.' Sec. 3-2406 Burns' 1933, § 1111, Baldwin's 1934. It is clear, however, that this statute can have no application to the rights of persons not affected by the will, and this court so held in the case of Tom v. Tom, 1940, 107 Ind.App. 599, 601, 26 N.E.2d 410, 411, wherein it said: 'This statute is applicable only where the rights of all parties are fixed by the provisions of the will under which they claim title.' In the present case the appellee acquired fee simple title to an undivided one-half of the real estate in suit by purchase wholly independent of the will of Fannie O. Hollowell. She acquired such interest while said testatrix was still alive and, as far as the evidence discloses, neither the immediate conveyance to her, nor any remote devise or grant from which her title stems, contains any condition or restriction on her right to partition or any other method of alienation. She comes squarely within the provisions of § 3-2401, Burns' 1933, § 1106 Baldwin's 1934, which reads as follows: 'Any person holding lands as joint tenant or tenant-in-common, whether in his own right or as executor or trustee, may compel partition thereof in the manner provided in this act.' This is an absolute right and is not curtailed in any degree by the fact that the part of the land sought to be partitioned is subject to a life estate. Sec. 3-2402, Burns' 1933, § 1107, Baldwin's 1934; Tower v. Tower, 1894, 141 Ind. 223, 40 N.E. 747; Smith v. Andrew, 1912, 50 Ind.App. 602, 98 N.E. 734; Coquillard v. Coquillard, 1916, 62 Ind.App. 426, 113 N.E. 474. Had the appellee instituted this suit during the lifetime of Fannie O. Hollowell, there could be no question of her right to maintain it and that right could not have been abridged or curtailed by any act of her co-tenant during life, and it certainly follows that such co-tenant could do no more through testamentary disposition than she could have done while alive.
The appellants next contend that the evidence discloses an implied agreement between the appellee and the life tenant that the land should be held in common during the latter's life and the present partition would be grossly inequitable and result in great damage to the interests of such life tenant and therefore the relief appellee now seeks is barred by estoppel. This is an affirmative defense and the burden was on the appellants to establish it. The court's findings are silent as to any such agreement and such silence must be treated as a finding against the appellants on that issue. City of Michigan City v. State ex rel. Seidler, 1937, 211 Ind. 586, 5 N.E.2d 968; Deming Hotel v. Sission, 1940, 216 Ind. 587, 24 N.E.2d 912; Home Equipment Co., Inc. v. Gorham, 1941, 218 Ind. 454, 33 N.E.2d 99. Complaint that a negative finding on the issue is not supported by the evidence presents no question for our consideration. Scoopmire v. Taflinger, 1944, Ind.App. 52 N.E.2d 728; McKee v. Mutual Life Ins. Co. of New York, 1943, Ind., 51 N.E.2d 474; Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.
The appellants question the power of the court to charge the remaindermen's share of the proceeds of the sale with a trust for the payment of the expenses of the life tenant's last sickness and burial because such charges are...
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