Rook v. Wilson
| Decision Date | 17 September 1895 |
| Docket Number | 17,311 |
| Citation | 41 N.E. 311,142 Ind. 24 |
| Parties | Rook et al. v. Wilson |
| Court | Indiana Supreme Court |
From the Jay Circuit Court.
Judgment affirmed.
D. T Taylor, for appellants.
La Follette & Adair and R. H. Hartford, for appellee.
This was an action brought by appellee against appellants and other defendants to quiet title to certain real estate. A demurrer having been overruled to the complaint, the appellants filed an answer and a cross-complaint. Afterwards by leave of the court, the answer and cross-complaint were withdrawn, and the appellants stood upon their demurrer. Thereupon, the court, having heard the evidence, found for the appellee, and entered a decree quieting his title to the land in controversy.
Appellee traces title through mesne conveyances to a warranty deed made by Mary Rook and David Rook, widow and son of Samuel Rook; and the only question to be considered is whether the last will of Samuel Rook authorized David Rook to execute said deed.
It is not questioned that by said will certain land was devised to David Rook, on condidions which were fulfilled by him; that on the death of the testator, in August, 1854, the will was duly proved and David Rook at once went into possession of the land in controversy, claiming ownership under the will; and that he so continued in possession under claim of ownership until the making of the deed under which appellee claims title. It seems also that the title and possession thus acquired remained unassailed for nearly forty years.
It is said, however, that the land described in the will is not the same as that in dispute. The description in the will is: "My real estate, to-wit: The southeast quarter of the southeast of section eight (8), in township No. eight (8) in (22) north, of range twelve (12) east."
Appellee alleged in his complaint that, in this reference to the lands devised, the testator used an erroneous specific description of land which he did not then and at no time thereafter own; but that he did at the time own the land here in dispute, to-wit: "The northeast quarter of the southeast quarter of section eight (8), township twenty-two (22) north, range twelve (12) east;" that the last named land was "the only real estate owned by said Samuel Rook at his death;" and that "the said land '(describing it)' is and was the land referred to in the said will of Samuel Rook, deceased, by the words, 'my real estate.'"
These allegations, being taken as true, were sufficient, as we think, to make the complaint good as against the objection here urged against it. The intention to devise the land in...
To continue reading
Request your trial