Pearson v. Pearson

Decision Date09 October 1890
Docket Number15,264
Citation25 N.E. 342,125 Ind. 341
PartiesPearson v. Pearson et al
CourtIndiana Supreme Court

From the Warren Circuit Court.

Judgment affirmed.

W. L Rabourn, for appellant.

C. V McAdams and E. Stansbury, for appellees.


Coffey, J.

The assignment of errors in this case calls in question the correctness of the ruling of the circuit court in sustaining the demurrers of the appellees to the complaint filed against them by the appellant.

The complaint alleges, substantially, that in the year 1859 the appellee Robert Pearson, being largely indebted, in order to procure funds with which to pay such indebtedness, conveyed to Wilson Claypool the land described in the complaint, by an instrument in writing which purported to be an absolute deed of conveyance, for the stipulated consideration of twelve hundred dollars, when, in fact, it was intended by the parties to said instrument to secure the said Claypool in the loan and advancement of eight hundred dollars to the said Robert; that it was agreed between the said Pearson and Claypool that the said Claypool should sell and convey enough of said land to repay said eight hundred dollars, and that he should convey the remainder of said land to Rebecca Pearson, wife of the said Robert Pearson; that Claypool was fully paid said sum of eight hundred dollars, and by agreement between him, the said Robert, and Rebecca Pearson and John G. Pearson, said land was conveyed by the said Claypool to the said John G. Pearson on the 22d day of August, 1866; that said conveyance was made to the said John G. Pearson under the express agreement, made at the time, that the said John G. Pearson should sell and dispose of said land from time to time, as necessity should demand, and pay the proceeds to the said Rebecca Pearson, who was his mother, during her lifetime, and that if any portion should remain unsold at the time of her death the same should be sold and the proceeds thereof paid to the three children of the said Rebecca, viz., the appellant, George Pearson, Eliza Claypool and the said John G. Pearson, share and share alike; that the said John G. Pearson paid no consideration for said conveyance; that during the life of the said Rebecca Pearson, the said John G. Pearson sold a portion of said land for which he realized the sum of three thousand dollars which he paid over to the said Rebecca; that the said Rebecca died intestate in Warren county, in the State of Indiana, on the 3d day of March, 1883; that after her death the said John G. Pearson sold other portions of said land, from which he realized the sum of four thousand dollars, which he converted to his own use; that the appellant and the said Eliza Claypool made frequent demands upon the said John G. Pearson to sell the remaining portion of said land, and to pay to them their share of the proceeds thereof, which he refused to do; that the said John G. Pearson died intestate in Warren county, Indiana, on the 4th day of October, 1888, leaving surviving him his wife, the appellee Martha Pearson, and one child, the appellee Julia Pearson; that the said Martha Pearson and Julia Pearson as the heirs at law of the said John G. Pearson, deceased, claim all of said land remaining unsold, which is of the value of six thousand dollars; that the appellee Eli Stansbury is the duly appointed and qualified administrator of the estate of the said John G. Pearson, and as such has procured an order of the Warren Circuit Court to sell portions of said land for the payment of the debts of the said John G. Pearson, and is threatening to sell the same for that purpose, and denies the right of the plaintiff to any interest in said land, or the proceeds of the sale thereof; that the appellant is entitled to one-third of the proceeds of the sales of said land made by the said John G. Pearson during his lifetime and after the death of the said Rebecca Pearson, and to one-third of the proceeds of all sales of said land hereafter to be made; that the appellee Robert Pearson, who is the surviving husband of the said Rebecca, is made a party defendant to answer as to his interest in the subject-matter of this suit. Prayer, that Stansbury, as administrator, be restrained from selling any portion of said land until the interest of the parties hereto be determined; that a commissioner be appointed to sell said lands, and that he be directed to pay one-third of the proceeds thereof to the appellant, and that in the distribution of such proceeds he take into account all sales of said land made by the said John G. Pearson since the death of the said Rebecca, etc.

Every pleading must proceed upon some definite theory, and its sufficiency must be determined by the theory upon which it proceeds. Platter v. City of Seymour, 86 Ind. 323; Mescall v. Tully, 91 Ind. 96; Western Union Tel. Co. v. Young, 93 Ind. 118; Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, 3 N.E. 611; First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105.

The complaint before us can not be sustained upon the theory that it is an action to recover the proceeds of sales made by John G. Pearson in his lifetime, as contended by the appellant for in such...

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