Roberts v. Lindley
| Decision Date | 07 November 1889 |
| Docket Number | 13,362 |
| Citation | 22 N.E. 967,121 Ind. 56 |
| Parties | Roberts v. Lindley et al |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
The judgment is reversed, with costs, with directions to sustain the appellant's motion for a venire de novo.
J. A New, J. W. Jones and L. H. Reynolds, for appellant.
E Marsh and W. W. Cook, for appellees.
The facts, briefly stated, are that William S. Wood and his wife Martha A., joined in a mortgage conveying certain real estate, owned by the former, to secure certain debts of the husband. Woods subsequently died leaving his widow and three children as his surviving heirs, and leaving the debts secured by the mortgage above mentioned unpaid. The administrators of his estate applied to the proper probate court for an order to sell the mortgaged real estate for the purpose of making assets to pay the debts secured by the mortgage. The widow and children were made parties to the proceeding.
The former appeared, and in writing waived the publication and posting of notice required by the statute, and also assented to the sale of the whole of the real estate mentioned in the petition, upon an alleged agreement that two-thirds of the proceeds should be applied to the payment of the mortgage debt, and one-third thereof paid to her. The land was sold in pursuance of an order of the probate court, and the administrators in pursuance of the sale made a conveyance of the whole of the several tracts sold to the purchaser, who went into possession under his deed. Subsequently the widow died, and this suit was instituted by her heirs or devisees, who claim the undivided one-third of the land which descended to their mother, their insistence here being that the order of sale made by the probate court was beyond its jurisdiction, and, therefore, void. That this position is well taken is settled upon authority, and that the right of the heirs to assert title to the undivided one-third of the land is not affected by the invalid order of sale is also established, unless their ancestor, through whom they claim, received the purchase-money, or in some way constituted the administrators who made the conveyance her agents, so that she became bound by their acts, or estopped to assert her title. Pepper v. Zahnsinger, 94 Ind. 88, and cases cited. Merely signing a paper in which she manifested her assent to an order for the sale of the whole of the several...
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