Sims v. Gay

• Decision Date: 19 November 1886
• Parties: Sims v. Gay and others.
• Court: Indiana Supreme Court

109 Ind. 501

9 N.E. 120

Sims

v.Gay and others.^a1

Supreme Court of Indiana.

November 19, 1886.

Appeal from Marion superior court.

Darley & Pickerill and McMaster & Boice, for appellant.

Elliott, J.

The questions in this case arise on the ruling denying the appellant a new trial; and it is unnecessary to notice the pleadings further than to say that the complaint is for the recovery of real property.

The trial court, over the objection of the appellant, admitted in evidence the record of the proceedings in the matter of the petition of the executor of the last will of William Nugent to sell the testator's real property to pay debts. We think there was no error in this ruling. It is true that this record does not show that the appellant, who was a daughter of William Nugent, was notified of the petition; but, as our cases uniformly hold, the presumption is in favor of the jurisdiction of the court, and, where the record is silent, jurisdiction will be presumed. In the early case of Horner v. Doe, 1 Ind. 130, it was said: “Where the record discloses nothing upon the point, jurisdiction of the person and of the subject-matter will, the contrary not being proved, be presumed in cases of domestic judgments of courts of general jurisdiction where they come collaterally in question.” In support of this doctrine many cases are cited, and it has been sanctioned by this court in a great number of cases. Doe v. Smith, 1 Ind. 451, 459;Doe v. Harvey, 3 Ind. 104;Alexander v. Frary, 9 Ind. 481;Waltz v. Borroway, 25 Ind. 380;De Quindre v. Williams, 31 Ind. 444;Hays v. Ford, 55 Ind. 55;Dwiggin v. Cook, 71 Ind. 580;State v. Ennis, 74 Ind. 17;Iles v. Watson, 76 Ind. 359-361;Crane v. Kimmer, 77 Ind. 215, 219.

But there are other rules which apply here. One of these is thus stated: “Where a court of general jurisdiction assumes jurisdiction, the existence of all facts necessary to confer jurisdiction are presumed to exist.” Jackson v. State, 104 Ind. 516 and cases cited page 516; S. C. 3 N. E. Rep. 863. Another case thus states the rule: “Where the record does not show the contrary, nor what notice was given, it will be presumed that the proper notice was given.” Albertson v. State, 95 Ind. 370. In the case of Exchange Bank v. Ault, 102 Ind. 328, S. C. 1 N. E. Rep. 562, it was said: “In considering such questions every presumption is indulged in favor of the validity of the judgment or decree sought to be impeached.” Many cases sustain this general doctrine. Pickering v. State, 106 Ind. 228,vide authorities cited page 230; S. C. 6 N. E. Rep. 611; Cassady v. Miller, 106 Ind. 69; S. C. 5 N. E. Rep. 713. The court, having general probate jurisdiction, is a court of superior jurisdiction, so that the case is fully within the rule. Doe v. Smith, 1 Ind. 451;Powell v. North, 3 Ind. 392. Another rule which applies here is this: Where a court has authority to determine the facts essential to its jurisdiction, its decision that it has jurisdiction cannot be collaterally impeached. Evansville v. City of Evansville, etc., Co., 15 Ind. 395;De Quindre v. Williams, supra;Jackson v. State, supra, and cases cited; Pickering v. State, supra, 231; Spencer v. McGonagle, 8 N. E. Rep. 266, (September 21, 1886.)

In this case the record does not show that notice was not issued and served, and it does appear that the court assumed jurisdiction and entered a final judgment, and this is a decision of jurisdictional questions, for it is well settled that it is not necessary to enter a formal order asserting jurisdictional authority. Platter v. Board, etc., 103 Ind. 360, S. C. 2 N. E. Rep. 544, and cases cited; Carr v State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Jackson v. State, supra, vide page 520. Tested by these rules, it would seem the record was not only competent evidence, but that it was evidence conclusive in its character. It is, however, not necessary for us to decide, at this point, that it was conclusive; for it is sufficient to decide that it was competent, and this it clearly was, because, if it did not do much more, it at least proved color of title. It is well settled that where there is a judicial proceeding, although void, under which possession is taken, it will constitute color of title. Wright v. Kleyla, 104 Ind. 223; S. C. 4 N. E. Rep. 16; Brenner v. Quick, 88 Ind. 546, 552;Brauman v. Grubbs, 26 Ind. 419;Doe v. Hearick, 14 Ind. 242;Van Cleave v. Milliken, 13 Ind. 105;Bell v. Longworth, 6 Ind. 273.

The proceedings for the sale of the land in controversy were begun in October, 1825, and in October, 1826, the deed executed pursuant to the order of the court was confirmed. The appellant's right of action, therefore, accrued in 1826; and, as the appellee's grantor had at least color of title, the statute of limitations will run unless there is some bar. The only hinderance to the running of the statute was the infancy of the appellant, but that disability was removed more than 40 years before the action was brought. When that disability was removed, she had a right to bring her action within the statutory period; and, having failed to do so, she is barred. It is a mistake to suppose that the statute does not begin to run during the existence of the disability, for it does begin, whether a disability exists or not; but, where there is an existing disability, a period of two years after its removal in which to sue is allowed by our statute. Wright v. Kleyla, supra;Barnett v. Harshbarger, 105 Ind. 410; S. C. 5 N. E. Rep. 718; Wright v. Wright, 97 Ind. 444;White v. Clawson, 79 Ind. 188. The appellant, it is true, married during nonage, but this does not affect the question, because one disability cannot be tacked to another. When the statute once begins to run, nothing stays its course. Knippenberg v. Morris, 80 Ind. 540;White v. Clawson, 79 Ind. 188;Kistler v. Hereth, 75 Ind. 177; Wood, Lim. p. 491, § 251; Ang. Lim. (6th Ed.) § 197.

The will of William Nugent authorized his widow to appoint an assistant to aid her in the discharge of the duties of the trust of executing the will. She did appoint an assistant, and he, as it appears, applied for an order to sell the land, but she joined him in reporting the deed for confirmation, and also joined in the deed. This is sufficient to estop her from asserting, as against her grantees, that all of the land was not sold. Pepper v. Zahnsinger, 94 Ind. 88;Pitcher v. Dove, 99 Ind. 175. If, however, we are...