Sell v. Keiser
| Decision Date | 15 December 1911 |
| Docket Number | No. 7,345.,7,345. |
| Citation | 49 Ind.App. 101,96 N.E. 812 |
| Parties | SELL et al. v. KEISER et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Whitley County; L. W. Royse, Special Judge.
Action by Lydia Sell and others against Rachael Keiser and others. From a judgment for defendants, plaintiffs appeal. Affirmed.Andrew A. Adams, for appellants. Adair & Strong, for appellees.
This suit was brought by appellants to set aside a guardian's sale of real estate and to have the same re-offered for sale.
The errors relied upon for reversal are: (1) Overruling the demurrer to the third paragraph of appellee Rachael Keiser's answer to the complaint; and (2) error in stating the second, third, fourth, fifth, and sixth conclusions of law.
[1] Upon proper request the court made a special finding of facts and stated its conclusions of law thereon to which the appellant duly excepted. Where this is done and the facts within the issues are fully and correctly found, the exceptions to the conclusions of law present the same questions as the rulings upon the demurrers to the pleadings and render it unnecessary to determine the correctness of the rulings upon the demurrers. Ross v. Van Natta et al., 164 Ind. 557, 74 N. E. 10;Fry et al. v. Hare et al., 166 Ind. 415, 77 N. E. 803;Board, etc., v. Wolff et al., 166 Ind. 325, 76 N. E. 247;Timmonds et al. v. Taylor, 96 N. E. 331.
The finding of the facts is, in substance, as follows: That the appellants are the children and only heirs at law of Samuel Traster, deceased. That on December 23, 1896, said Traster was adjudged to be a person of unsound mind, and on said day the defendant Conrad Keiser was appointed and duly qualified as his guardian. That at the time of such appointment said Traster was the owner in fee of certain described real estate. That on December 2, 1899, said Conrad Keiser, as guardian, filed with the Whitley circuit court his petition to sell the real estate of his ward to pay debts and for other purposes. That thereupon a private sale was duly ordered and one E. K. Strong appointed, by the court, commissioner to make the sale. That notice of sale was duly given, the real estate duly appraised, and said commissioner thereafter sold the same in pursuance of the order and notice aforesaid to the appellee Rachael Keiser, who was the wife of the defendant Conrad Keiser, the guardian aforesaid. That the real estate was appraised at $1,500 and sold for $1,600, which was the highest and best bid therefor. That said guardian did not bid upon the real estate, but furnished his wife a part of the money with which to pay therefor. That said sale was reported to and approved by the court and a deed ordered, which was duly executed by said commissioner and approved by the court on March 3, 1900. That said deed was delivered to said purchaser, who entered upon the possession of the real estate so conveyed. That at the April term, 1900, of the Whitley circuit court, said Conrad Keiser filed his final report and resignation as guardian aforesaid and paid into court the funds belonging to said guardianship. That said report was approved, and Elisha L. McLallen was appointed by said court guardian of said Samuel Traster. That on June 30, 1900, said McLallen as such guardian made a written showing of the facts relating to said real estate and asked an order of the court to direct him to affirm or disaffirm said sale, and thereupon the court ordered him to confirm the sale, which he did and applied the funds to the benefit of his said ward. That said Samuel Traster died intestate August 16, 1902, while still of unsound mind and under guardianship, leaving as his only children and his heirs at law the appellants and his widow, Mary Traster. That appellants have never received or accepted any part of the proceeds of said sale. That this suit was commenced August 13, 1906.
The court stated his conclusions of the law upon the facts found as follows:
The appellants insist that the court erred in its conclusions of law, and especially in holding that the action is barred by the five-year statute of limitations. Clause 4 of section 295, Burns 1908 Statutes, is as follows: “For the recovery of real property sold by executors, administrators, guardians, or commissioners of a court, upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming a title under a party, acquired after the date of the judgment, within five years after the sale is confirmed.”
It is urged that the action is not to recover the possession of real estate; that the relief sought is to have the sale set aside, the land resold by a commissioner appointed by the court, and out of the proceeds to reimburse the purchaser under the former sale and to take an accounting of purchase money, interest, and improvements on the one hand and rents and profits on the other; that appellants are not heirs of a party to the proceedings for the sale by the guardian; that the real estate was not sold under a judgment specially directing its sale; that the statute was not intended to apply to ex parte guardian sales; that regardless of any actual or intentional fraud, or showing of a loss or injury to the ward, he or his heirs may have a resale of the property at any time within fifteen years from the confirmation of the sale.
Counsel for appellants concedes that it is settled in this state that an action to recover real estate or quiet title thereto, where sold by “an administrator, guardian or commissioner, upon a judgment specially directing the sale, when brought by a party to the judgment or his heirs, is barred by clause 4 of section 295” aforesaid.
[2] This in effect, according to appellants' contention, narrows the question to the proposition that the Legislature in enacting the five-year clause of said section only intended that it should apply to sales by a guardian when such guardian was a party to some adversary proceeding in which the judgment of the court specially directed the sale and authorized it to be made by such guardian. This construction gives only a...
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