Sigmond v. Bebber

• Decision Date: 22 January 1898
• Citation: 104 Iowa 431,73 N.W. 1027
• Parties: SIGMOND ET AL. v. BEBBER ET AL.
• Court: Iowa Supreme Court

104 Iowa 431

73 N.W. 1027

SIGMOND ET AL.

v.BEBBER ET AL.

Supreme Court of Iowa.

Jan. 22, 1898.

Appeal from district court, Linn county; William G. Thompson, Judge.

The following are the material averments of the petition as amended: The plantiffs are the children and heirs of Christopher Sigmond, deceased, who died testate December 10, 1894, seised of about 172 acres of land, which included a homestead of 40 acres. By his will he devised to his widow, now defendant Mary M. Bebber, the control and possession of all his property, real and personal, as long as she should live and remain his widow, with a right of disposal, except as to the real estate, which under no circumstances was to be sold or mortgaged, except that, in the event of the marriage of his widow, then all the property was to be sold, real and personal, the widow to take one-third, and the balance to go to his children in a manner specified. It further appears from the petition that the widow was duly appointed administratrix of the estate; that she did not elect to take according to the law, and waive the provisions of the will in her favor; that in October, 1887, as administratrix, she applied to the court for an order to mortgage all of said real estate for the payment of the debts of the estate; that plaintiffs were duly notified of such application, and a guardian ad litem appointed for the minors, and upon the hearing the order was made to mortgage it for the sum of $1,350, which was done; that in October, 1888, the administratrix presented an application to the district court to sell all of said land for the purpose of paying the claims against it, of which application plaintiffs had notice, and a guardian ad litem was appointed for the minors, who answered, and, upon the hearing, the order for a sale was made, and all of the land was sold for the sum of $3,200, and the sale was approved by the court; that defendant James Bruce was the purchaser of the land, and the title has passed from one to another of the defendants, until it rests in defendant Spottswood, all of the purchasers being parties defendant. The relief asked is that the sale of the land be set aside so far as the homestead 40 is concerned, and canceling the record thereof. To the petition there was a general demurrer, which the court sustained, and, the plaintiffs electing to stand on their petition, a judgment was entered, from which they appealed. Affirmed.Moses & Burr, for appellants.

Griffen & Voris and W. F. Fitzgerald, for appellees.

GRANGER, J.

1. The defendants, aside from Mary M. Bebber, who was the widow of Christopher Sigmond, deceased, are the respective purchasers of the land, in pursuance of the sale by her as administratrix, and one Mary Holub, a daughter of the testator, who had received her proportion of the estate as an advancement, and she filed a disclaimer of any interest in the land, and hence has no further interest in the suit. During the adjustment of the pleadings, the court required the plaintiffs to make the petition more specific in certain particulars, on motion of defendants, and complaint is now made of such rulings. The effect of the rulings was to add to and not take from the petition, so that all remains upon which plaintiffs rely to state a cause of action. Nothing added in pursuance of the motions in any way changes the legal effect of the averments relied on by plaintiffs, and as the petition, when amended, was tested, as to its sufficiency, by demurrer, there could have been no prejudice because of the rulings on the motions. The objection to the petition is, as shown by arguments, that it does not state facts sufficient to show a cause of action, and, as we have said, the rulings on the motions took nothing from the petition.

2. This is a direct, and not a collateral, proceeding. It may be conceded that, if the judgment of the court, ordering the sale of the land to pay the mortgage debt, is open to attack in a proceeding other than the one in which it was rendered, this is a proper one. The relief sought is based on a claim that the order of sale, made by the district court, is void, so far as the homestead is concerned, because of the provisions of the law that the homestead descends to the heirs, and is not liable for the payment of debts of the estate. That rule may be...