Ratliff v. Stretch

• Decision Date: 07 March 1889
• Docket Number: 13,390
• Parties: Ratliff v. Stretch
• Court: Indiana Supreme Court

20 N.E. 438

117 Ind. 526

Ratliff v. Stretch

No. 13,390

Supreme Court of Indiana

March 7, 1889

From the Grant Circuit Court.

Judgment affirmed.

A Steele, R. T. St. John and H. Brownlee, for appellant.

R. W Bailey, for appellee.

OPINION

Coffey, J.

This was an action in the circuit court by the appellant against the appellee to quiet title to the real estate described in the complaint, situate in the original plat of the town of Marion.

The appellee answered the complaint by a general denial. She also filed a cross-complaint in three paragraphs, the first of which was afterwards withdrawn.

The second paragraph alleges that the appellee, as the widow of James A. Stretch, deceased, is the owner in fee of one-third of the real estate described in the complaint; that the plaintiff is in possession thereof, claiming title thereto. Prayer that her title be quieted, and that she have possession.

The third paragraph alleges that the appellee, as the widow of James A. Stretch, is the owner in fee of the undivided one-third of the land described in the complaint; that the plaintiff has been in the possession of the same for the period of ten years, renting the same to third parties, from whom he has collected six hundred dollars per year; that the rental value of defendant's one-third was three hundred dollars per year, which plaintiff collected and converted to his own use. Prayer for an accounting and for partition.

The appellant demurred to each paragraph of the cross-complaint but his demurrer was overruled and he excepted.

The appellee filed an amended first paragraph of cross-complaint, which alleges, substantially, that the real estate in controversy was owned by James A. Stretch, who was the husband of appellee; that Newton P. Stewart and Phillip Gallagher obtained a judgment in the Grant Circuit Court, in May, 1865, against the said James A. Stretch; that in October, 1865, Charles F. Thompson et al. also recovered a judgment in said court against him; that executions were issued on both of said judgments to the sheriff of Grant county, and levied upon said land; that said sheriff sold the same, on the said judgment of Stewart and Gallagher, to John Brownlee for the sum of one thousand dollars; that said sheriff also sold said land afterwards, on the judgment so recovered by Thompson et al., to Davidson Culbertson for the sum of eighty-five dollars, which last sale was subsequently set aside; that the only title the plaintiff holds to the land in dispute is by virtue of quitclaim deeds from said Brownlee and Culbertson, whose only title was by virtue of said sales; that the plaintiff, by virtue of said quitclaim deeds, has been in possession of said land since the year 1868, and has received all the rents and profits thereof; that the defendant, at the time of the rendition of said judgments, was the wife of the said James A. Stretch, and continued so to be until his death, which occurred on the 20th day of June, 1880. Prayer for an accounting, and for a decree permitting appellee to redeem.

The appellant answered these several paragraphs of the appellee's cross-complaint by an answer containing seven paragraphs. The first is a general denial.

The second and fifth paragraphs of this answer are affirmative answers, addressed to the second paragraph of the cross-complaint.

The third paragraph is addressed to the third paragraph of the cross-complaint, and alleges, substantially, that in the lifetime of James A. Stretch appellant became and still is the owner in fee of all his interest in the real estate in controversy, upon judicial sale; that by virtue of his title so procured he took possession of the same; that it is suitable for a business house only; that at the time he so took possession of the same it was unimproved; that he has erected thereon a brick building of the value of $ 10,000, a part of which improvement was made during the lifetime of the said James A. Stretch, and part of the same, of the value of $ 1,000, since his death, all of which improvements were made with the knowledge and consent of the appellee; that the appellant has paid for taxes and street improvements against said property the sum of $ 2,000; that he holds a mortgage on said property, executed by the appellee and her husband, for $ 450, dated July 24, 1864, which is wholly unpaid. Prayer that in the event partition be awarded appellee these sums be taken into account.

The fourth paragraph is addressed to the whole cross-complaint and alleges, in substance, that the land in dispute was conveyed to appellee prior to August, 1864; that at the time of the conveyance to her Newton P. Stewart and Phillip Gallagher owned a judgment rendered against James A. Stretch in the Grant Circuit Court; that at the August term of said court for the year 1864 said Stewart and Gallagher filed their complaint in said court against the appellee and her husband, the said James A. Stretch, praying that their said judgment be declared a lien on said real estate; that said court in said cause found, ordered and decreed against the appellee that said land and her interest therein be sold to pay said judgment, and that the same was a lien thereon; that upon said decree said land...