Peck v. Williams

• Decision Date: 08 February 1888
• Docket Number: 13,039
• Citation: 15 N.E. 270,113 Ind. 256
• Parties: Peck et al. v. Williams
• Court: Indiana Supreme Court

15 N.E. 270

113 Ind. 256

Peck et al. v. Williams

No. 13,039

Supreme Court of Indiana

February 8, 1888

From the White Circuit Court.

The judgment is reversed, with costs.

A. W Reynolds and E. B. Sellers, for appellants.

R Gregory and J. F. McHugh, for appellee.

OPINION

Mitchell, C. J.

This proceeding was instituted by George Williams against Lury Peck and others to obtain the partition of certain real estate in White county. Issues were made, and, upon request the court found the facts specially and stated its conclusions of law thereon.

The case may be disposed of upon the special findings of the court. So far as they are material to be stated, the facts thus found are, that prior to the year 1872 Lury Peck and John A. Dyer were tenants in common, with others, of a certain tract of land in White county. In 1872 Mrs. Peck purchased the interest of John A. Dyer in the common property, and paid him a valuable consideration therefor. There was no written contract of sale, nor was there a conveyance from Dyer of his interest in the land to Mrs Peck. The latter had formerly been the widow of Mortimer Dyer, who died the owner of the land in controversy, leaving the appellant and John A. Dyer, their son, and others, as his heirs at law, to whom the real estate descended. The widow subsequently remarried, and occupied the premises as a home for the family. After she purchased the interest of John A., and also the shares of some of the other heirs, she continued in possession of the whole, making lasting and valuable improvements thereon. John A. Dyer lived on a farm in the neighborhood, and neither had nor claimed the possession of, or any right in, the homestead after the sale of his interest to his mother.

In 1876 Williams recovered a judgment against John A. and another in the White Circuit Court for $ 260 and costs, upon which judgment Mrs. Peck, then a married woman, became replevin bail for the stay of execution. After the judgment was rendered, viz., in December, 1876, John A. Dyer, in pursuance of the contract of purchase theretofore made, executed a deed of conveyance to his mother for his interest in the land. Subsequently, in June, 1877, Williams caused the interest of John A. Dyer in the common property to be levied upon and sold at sheriff's sale, the former becoming the purchaser thereof, for the amount of his judgment, interest and costs. He received a sheriff's deed in due course, and upon this title he prevailed in the court below.

It was found that the deed from John A. Dyer to Mrs. Peck had never been recorded. Williams had no notice of the deed, or of the rights of Mrs. Peck except such as resulted from her possession of the property.

Upon the theory that the contract between Mrs. Peck and her son, under which she claimed to have become the owner of his share in the common property, was within the statute of frauds, and that it had not been rescued therefrom by the subsequent possession and improvements made by the purchaser; and upon the further assumption that Williams became a purchaser for value, in good faith, without notice, the court stated conclusions of law favorable to a recovery by the plaintiff below.

To sustain the conclusions of the court, the following authorities are relied on: Sanford v. Tucker, 54 Ind. 219; Johns v. Johns, 67 Ind. 440; Armstrong v. Kattenhorn, 11 Ohio 265; Workman v. Guthrie, 29 Pa. 495; Buckmaster v. Needham, 22 Vt. 617; Brown v. Volkening, 64 N.Y. 76; Wade Notice, section 290.

These cases assert the general doctrine that the possession of one tenant in common is the possession of all, and that the mere continuance in possession of a tenant in common, or other person, is not such part performance as will take an oral contract for the sale of real estate out of the operation of the statute, or affect a purchaser such as Williams was with notice.

Without undertaking to discriminate more particularly between the cases cited, or to show their inapplicability to the present case, it is only necessary to say, there is nothing more thoroughly settled than that the lien of a judgment is subject to all the equities in favor of third persons in land sought to be subjected to the satisfaction of the judgment. The rights of persons who have equitable interests which are prior in point of time to those of a judgment creditor, are the subjects of protection by a court of chancery. Foltz v. Wert, 103 Ind. 404, 2 N.E. 950, and cases cited; Wright v. Jones, 105 Ind. 17, 4 N.E. 281, and cases cited; Heberd v. Wines, 105 Ind. 237, 4 N.E. 457; Wells v. Benton, 108 Ind. 585, 8 N.E. 444.

The general lien of the Williams judgment did not affect the equitable interest of Mrs. Peck, nor defeat the right of Dyer, the...