Palmerton v. Hoop
| Decision Date | 29 March 1892 |
| Docket Number | 15,606 |
| Citation | 30 N.E. 874,131 Ind. 23 |
| Parties | Palmerton et al. v. Hoop |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
Judgment affirmed.
H Dailey and J. B. McFadden, for appellants.
K. M Hord and E. K. Adams, for appellee.
The complaint in this cause consists of three paragraphs.
The first paragraph consists of the ordinary complaint for the recovery of the possession of real estate.
The second paragraph alleges that the appellants are the owners in fee, and entitled to the possession, of the three-fifths of the land described therein; that they are the heirs at law of Francis M. Palmerton, who died in the year 1872; that said Francis was the son and heir of Homer Palmerton, who died in the year 1870 seized in fee of the land described in the complaint, with other lands in Shelby county, one-fifth of which descended to the said Francis, subject to the payment of its portion of the debts of the said Homer; that the said Homer left four other heirs, two of whom conveyed to the said Francis and the appellant Margaret Van Dorn, who was at that time the wife of said Francis; that the said Francis took out letters of administration on the estate of Homer Palmerton and procured an order of the proper probate court to sell said land for the payment of the debts due from said estate, but died before a sale was consummated; that David Smith was appointed administrator de bonis non of said estate, and sold the land to the appellee for the sum of twelve dollars per acre, when he was offered by another person, who was able, willing and ready to purchase the same at the sum of twenty-five dollars an acre; that the sale was made by Smith to the appellee without the knowledge or consent of the person offering twenty-five dollars an acre for the same, and without the knowledge or consent of the appellants, or either of them, and for the fraudulent purpose of putting the title in the appellee, and for the purpose of cheating and defrauding the appellants; that the appellee is now in the possession of the land under said purchase, and that he has no other title thereto, and that for more than ten years last passed he has kept the appellants out of possession of said land.
The third paragraph is, in legal effect, the same as the second, except that it alleges, in addition, that Smith, the administrator, and the appellee conspired together to sell the land to the appellee for less than one-half its value.
Each of the paragraphs of the complaint prays for possession of the land and damages for its detention.
The appellee answered:
First. The general denial.
Third. To the second and third paragraphs of the complaint the five years' statute of limitations.
Fourth. To the first paragraph of the complaint the five years' statute of limitations, averring that the appellee holds the land under an administrator's sale.
Fifth. Estoppel; alleging that a part of the purchase-money paid for the land at administrator's sale was received by the adult heirs of Francis M. Palmerton and a part by the guardian of his infant heirs; that the infants have since become of age, and settled with their guardian, and have received their portion of said money; that all the appellants still hold the purchase-money for said land so received by them.
The appellee also filed a cross-complaint setting up title in himself and asking to quiet his title. He also filed a claim under the occupying claimant's act.
A number of affirmative answers were filed by the appellants to the cross-complaint of the appellee, to which the court sustained a demurrer.
The appellants Francis M. and Emma M. Palmerton filed a separate reply, consisting of five paragraphs, the first being a general denial.
The second is addressed to the third paragraph of the answer, and admits the purchase by the appellee at administrator's sale, but alleges that they were not parties to the proceeding which resulted in the order for the sale, and had no notice thereof, and that they had no notice of the fraud set up in the complaint until a few days prior to the commencement of the suit.
The third paragraph of the reply is addressed to the fourth paragraph of the answer, and alleges that they were not parties to the proceeding resulting in the order to sell the land, and had no notice thereof; that at the time the petition for the sale of the land was filed they were minors, under the age of twenty-one years, and that they are yet under the age of twenty-one years; that they had no notice of the fraud alleged in the complaint until a short time before the commencement of this suit.
The fourth paragraph of the reply is addressed to the fifth paragraph of the answer, and alleges that the order to sell the land was obtained by Francis M. Palmerton, and that he died before the sale was consummated; that Smith was appointed administrator de bonis non, and procured an order for reappraisement of the land, and to sell at private sale, without any notice of his application therefor; that he procured the order in the year 1874, and in the year 1875 sold the land to the appellee for its full appraised value, but for less than one-half of its actual value, when he was offered more than double the sum paid by the appellee; that the appellee was one of the appraisers who reappraised the land.
The fifth paragraph of the reply is addressed to the third, fourth, fifth and sixth paragraphs of the answer, and alleges substantially the same facts set up in the second and third paragraphs of the complaint, and, in addition thereto, that the appellants Francis M. and Emma M. Palmerton are yet minors under the age of twenty years; that Smith, as administrator, procured a reappraisement of the land, and an order to sell at private sale, without giving any notice of his application therefor, and that appellee was one of the appraisers who reappraised the land, and that the appellants did not discover the fraud alleged in the complaint until the year 1888.
The appellants also filed a joint reply consisting of five paragraphs, which do not differ materially in legal effect from the separate replies filed by the appellants Francis M. and Emma M. Palmerton, above set forth.
The court sustained a demurrer to each of the several affirmative replies; and the appellants, electing to stand on these pleadings, withdrew the general denials, and the appellee had judgment for costs.
No question is made in this court as to the sufficiency of the complaint, or as to the sufficiency of the answers above referred to. It is urged, however, that the circuit court erred in sustaining demurrers to the affirmative answers to the appellee's cross-complaint and to the affirmative replies.
No available error was committed by the circuit court in sustaining a demurrer to the affirmative answers of the appellants to the cross-complaint of the appellee to...
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