Singer v. Scheible

• Court: Indiana Supreme Court
• Writing for the Court: HOWK
• Citation: Singer v. Scheible, 109 Ind. 575, 10 N.E. 616 (Ind. 1887)
• Decision Date: 24 February 1887
• Parties: Singer and others v. Scheible and others.

109 Ind. 575

10 N.E. 616

Singer and others

v.Scheible and others.

Supreme Court of Indiana.

February 24, 1887.

Appeal from circuit court, Bartholomew county.

S. Stonsifer, for appellants. Norton & Smith and Geo. W. Cooper, for appellees.

HOWK, J.

In this case the appellants, John F., Jacob H., and Clara Singer, sued Miranda J. and Della T. Singer, and the appellees Catharine Scheible, and James C. Laughlin, auditor, and the board of commissioners, of Bartholomew county, in a complaint of two paragraphs. The object of appellants'suit, as stated in each paragraph of complaint, was to quiet their title to certain real estate particularly described, in Bartholomew county. The demurrer of appellee Laughlin, county auditor, and the county board, was sustained as to each paragraph of complaint. The demurrer of Catharine Scheible was overruled as to the first paragraph, and sustained as to the second paragraph, of appellants' complaint. Mrs. Scheible then filed a cross-complaint, wherein she sought the foreclosure of a certain mortgage held by her on the same real estate described in appellants' complaint. To such cross-complaint appellants answered in three paragraphs, whereof the first was a plea of payment, in the second paragraph they stated substantially the same facts that were stated in the first paragraph of their complaint, and in the third paragraph of their answer they set up the same matters as those alleged in the second paragraph of their complaint. The demurrer of Mrs. Scheible was overruled as to the second paragraph, and sustained as to the third paragraph, of such answer; and she replied to the first and second paragraphs of answer, and answered the first paragraph of complaint, by general denials thereof.

The cause was submitted to the court for final hearing upon the complaint and cross-complaint, and the issues joined thereon, and the evidence adduced by the parties respectively, and, as against Miranda J. and Della T. Singer, the court found and decreed that appellants were the absolute owners of the real estate described in their complaint. Upon the issues joined on the first paragraph of complaint by Catharine Scheible, and on her cross-complaint, the court found against appellants, and in favor of Mrs. Scheible, and decreed the foreclosure of her mortgage, and the sale of the mortgaged real estate, and that the lien of such mortgage was prior and superior to the claims and equities of appellants in and to such real estate.

The first error complained of here by appellants is the sustaining of the demurrer of Catharine Scheible to the second paragraph of their complaint.

In this paragraph appellants alleged that on the ------- day of -------, 186 ---, Jacob Snyder died intestate, the owner in fee-simple of the following real estate in Bartholomew county, Indiana, to-wit: The S. 1/2 of the S. E. 1/4 of section 31, in township 10 N., of range 5 E., and the N. 1/2 of the N. E. 1/4 of section 6, in township 9 N., of range 5 E., and other real estate in such county, and also personal property of the value of $12,000; leaving the following children and grandchildren (and no widow) as his only heirs at law, to-wit: Reuben, John F., Simon, and Jacob Snyder; Ann E., wife of John Louden; Sarah, wife of Thomas King; Mary E. and Laura Treadway, infant children of his deceased daughter, ------- Treadway; and the appellants, infant children of Catharine Singer, another deceased daughter of Jacob Snyder, deceased; that thereafter said children and grandchildren, other than Jacob Snyder, Jr., instituted an action in the court of common pleas of Bartholomew county, against Jacob Snyder, Jr., for the partition of such real estate, wherein such proceedings were had as resulted in an order of such court for the sale of portions of the decedent's lands, including the real estate particularly described as aforesaid, and Simeon Stonsifer was appointed and duly qualified as commissioner to make such sale; that in such action and proceedings, appellants being then infants, Richard H. Singer, their father and guardian, duly appointed by the proper court of Pulaski county, Indiana, and qualified, appeared with and for them, and Milton Treadway, guardian of Mary E. and Laura Treadway, infants, duly appointed by the proper court and qualified, appeared with and for them, and that the other parties to such partition suit, with the husbands of the decedent's daughters, were all over the age of 21 years, and the husbands joined with their wives in such proceedings.

And appellants further said that, after the order of sale and the appointment of such commissioner, the parties to such suit appeared in such court of common pleas on November 26, 1869, and submitted to the court an agreementin writing, which was then and there spread of record in the proper order-book of such court; and, omitting the title of such suit and the signature of the parties, such agreement reads as follows: “It is agreed that R. H. Singer may become the purchaser from Simeon Stonsifer, commissioner, of all the real estate of which Jacob Snyder died seized, situate in Union township, Bartholomew county, Indiana, described in the complaint herein, for six thousand dollars, $2,000 to be paid on the day of sale, $2,000 one year from the day of sale, at six per cent., and $2,000 two years from the day of sale, with like interest; the said Singer is to pay the taxes on said real estate for this year, and is to have the rent on growing crops of wheat sown this year. As guardian of Catharine Singer's heirs, he may deduct, as a cash payment, from the first and second payments, the estimated distributive portions of said wards of proceeds of all real estate of said Jacob Snyder, deceased, and of his personal estate. The order directing the sale of said real estate to be sold at public sale is to be changed to private sale without notice or publication thereof. November 12, 1869.”

And it was averred in appellants' complaint herein that the real estate particularly described therein was the only real estate whereof Jacob Snyder died seized situate in Union township, in such county. Thereafter, on March 16, 1870, Simeon Stonsifer, Esq., commissioner as aforesaid, submitted to such court of common pleas his verified report in writing of his proceedings, as such commissioner, to the effect, inter alia, that, pursuant to the agreement of the parties to such partition suit, he was authorized to convey to Richard H. Singer the real estate particularly described in appellants' complaint herein, and take from him a mortgage to secure the payment of deferred payments assigned to parties and heirs therein; that such report was approved and ratified by such court; and it was thereon ordered, among other things, that Simeon Stonsifer, commissioner as aforesaid, execute to Richard H. Singer a deed of conveyance of the real estate hereinbefore described, purchased by him as aforesaid, and that, before the delivery of such deed, the commissioner take from said Singer a mortgage on such real estate to secure the unpaid balance of purchase money; and that thereupon, in pursuance of such order, Simeon Stonsifer, as such commissioner, submitted to such court of common pleas his deed of conveyance, in the statutory form, of the real estate above described, to said Richard H. Singer, which deed was then and there examined and approved by such court, and such approval was indorsed thereon; and, the costs of such suit having been paid, the commissioner aforesaid was discharged from further duty or liability in that behalf,-all of which proceedings have since remained of record and in full force, and were in fact and duly made.

Appellants further averred that the deed of conveyance, so executed and approved by such court, was duly acknowledged by the commissioner aforesaid, and, with such acknowledgment indorsed thereon, was duly recorded in the proper record-book of the recorder's office of Bartholomew county; that such deed contained a full and correct description of the two half-quarter sections of land hereinbefore described, but the clerk of such court, in copying such deed in the order-book entry, by inadvertence, omitted an 80-acre tract; that thereafter, and before the delivery of such deed to the grantee therein, the parties to such partition suit agreed among themselves as to the share and portion of appellants in and to the estate, real and personal, of Jacob Snyder, deceased, which was $2,800, and said Richard H. Singer put that amount, and credited himself therewith, into the purchase price of such real estate, after having secured by mortgage and otherwise satisfied the balance of...