Rinard v. West

• Decision Date: 02 January 1884
• Docket Number: 10,614
• Citation: 92 Ind. 359
• Parties: Rinard et al. v. West
• Court: Indiana Supreme Court

92 Ind. 359

Rinard et al. v. West

No. 10,614

Supreme Court of Indiana

January 2, 1884

From the Henry Circuit Court.

Reversed, at appellee's costs, with instructions to sustain the appellants' demurrer to each paragraph of the amended complaint, and for further proceedings in accordance with this opinion.

J. H Mellett and J. Brown, for appellants.

W Grose, R. Gregory and E. H. Bundy, for appellee.

OPINION

Hammond J.

This case was in this court before, and is reported in 48 Ind. 159. The complaint was then in three paragraphs, each of which was held insufficient, and upon that account the judgment was reversed. On being remanded to the circuit court of Delaware county the venue was changed to the court below. The appellee then filed an amended complaint in two paragraphs, to each of which the appellants unsuccessfully demurred for want of facts. Issues were made; trial by jury; verdict for appellee; and judgment on the verdict over the appellants' motion for a new trial.

It is claimed in this court that the court below erred in overruling the appellants' demurrer to the complaint, and also in overruling their motion for a new trial.

We set out the first paragraph of the complaint in full, which is sufficient for our purpose, as the appellee's counsel say in their brief, "The second paragraph of the complaint is substantially the same as the first."

The first paragraph of the complaint is as follows:

"William West complains of Adam Rinard and Emma Jane Rinard, and says that plaintiff was, on the 19th day of January, 1855, a resident of said county of Delaware and the owner of a farm in said county, of which some forty-five acres were cleared, fifteen of which were in wheat; and besides owned personal property, which was on said farm, of the value of $ 500; that Jesse Mundenhall was his brother-in-law, being the husband of Rachel, sister of plaintiff. Jesse was by arrangement living on said farm and in the possession of all the aforesaid property, consisting of horses and wagons, harness and implements generally. The wheat in the ground belonged to the plaintiff, the which said Jesse Mundenhall was to harvest and market and account to plaintiff for it after deducting expenses. Plaintiff avers that said wheat was of the value of $ 300. The plaintiff on the day and year aforesaid, to wit, January 19th, 1855, was then a bachelor, and, being desirous of seeing California, left all his substance in the hands of said Jesse, who was to account to plaintiff on his return. He avers that the annual rental of the farm, on which was a comfortable dwelling and all the necessary improvements, was $ 150. He further avers and charges that soon after his arrival in California, to wit, on or about January 1st, 1856, he forwarded to said Jesse $ 140 in gold, the which was duly received by said Jesse. Jesse continued to occupy plaintiff's land and used his property and the gold, acquiring large profits therefrom, and out of the proceeds of plaintiff's property and money in his hands, on the 18th of August, 1860, bought and acquired title to the following land in said county, to wit: The southeast quarter of the southwest quarter (forty acres), and the south half of the northeast quarter of the southwest quarter (twenty acres), in section 13, of township 19 north, of range 10 east, estimated to contain sixty acres, and of the value of $ 3,000. Said Jesse Mundenhall died intestate at said county on the 19th of December, 1860, leaving as his heirs at law his widow Rachel and three children, William, Amelia and John Mundenhall. The estate of said Jesse Mundendall was administered by Thomas Turner in said county of Delaware, and was finally settled in the common pleas court of said county, and said administrator discharged on the 20th day of June, 1863, as by the record of said court and by the clerk of said court under the seal of said court more fully and at large appears. William died soon after Jesse. On the 9th of November, 1862, Rachel Mundenhall intermarried with Adam S. Rinard. Of this marriage Emma Jane Rinard was born, who still survives. Subsequently to her birth, Willie and John Mundenhall, the other two children of Rachel Mundenhall, or rather Rinard, died, in the order named, leaving Emma Rinard surviving. David Ogle became administrator of Rachel's estate, which said estate was by him fully settled in the common pleas court of said county on the 6th day of February, 1866, and said administrator discharged, as by the certificate of the clerk of said court under the seal thereof and the record of said court more fully and at large appears. Plaintiff avers that said Adam S. Rinard was duly appointed guardian of the person and estate of the said Emma Jane Rinard on the day of -----, 186-, by the proper court of said county. On the settlement of the personal estate of said Rachel, said Adam S. Rinard received as his distributive share of said personal estate the sum of $ 321.72, and as the guardian of said Emma J. Rinard the further sum of $ 320.96, as by the record of said court more fully and at length appears. And the said Adam S. Rinard has now in his possession for himself and the said Emma J. Rinard the land heretofore succinctly described as having been bought by said Jesse Mundenhall, which (was?) and is of the value of $ 3,000, and which has not been alienated in good faith before the commencement of this action, and receiving the rents and profits of the same for all the years since the death of said Rachel. Plaintiff alleges, for more than six months immediately prior to each of the said final settlements of the personal estate of said Rachel and said Jesse, he was out of the State of Indiana, and alleges and charges that he returned to the State of Indiana for the first time since his departure in 1855 on the 6th day of June, 1869, and brought this action in the common pleas court of Henry county, Indiana, on the 25th day of May, 1870. He also avers and charges that the defendants hold the money and property as above described as the heirs and distributees, mediately, of Jesse Mundenhall, deceased, and as such are liable for the claim of plaintiff. Plaintiff claims judgment on this paragraph for $ 2,500."

The law in force when the transactions mentioned in the complaint occurred, and upon which the appellee bases his right to recover, was section 178 of the decedents' act of June 17th, 1852. 2 R. S. 1876, p. 554. That section reads as follows:

"The heirs, devisees and distributees of a decedent, shall be liable to the extent of the property received by them from such decedent's estate, to any creditor whose claim remains unpaid, who, six months prior to such final settlement, was insane, an infant, or out of the State; but such suit must be brought within one year after the disability is removed." (For the present law upon this subject, see section 2442, R. S. 1881.)

A complaint against heirs, devisees or distributees, under the above statute, to be sufficient, must, in the first place allege facts showing that the plaintiff had a valid demand against the decedent at the time of his death. The appellee's complaint wholly fails to show that he ever had any cause of action against Jesse Mundenhall. It avers that the appellee, in 1855, went to California, leaving his land in the occupancy of said Mundenhall; that the annual rental value of the farm was $ 150, and that Mundenhall occupied it up to the time of his death. But there is no averment that there was any contract, express or implied, whereby Mundenhall was to pay rent. Under the...