Smith v. Andrews

• Decision Date: 05 June 1912
• Docket Number: No. 7,917.,7,917.
• Citation: 50 Ind.App. 602,98 N.E. 734
• Parties: SMITH v. ANDREWS et al.
• Court: Indiana Appellate Court

50 Ind.App. 602

98 N.E. 734

SMITH

v.ANDREWS et al.

No. 7,917.

Appellate Court of Indiana, Division No. 1.

June 5, 1912.

Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.

Action by Thomas C. Smith against Riley Andrews and others for partition. From a judgment denying relief, plaintiff appeals. Reversed and remanded.

Watkins & Butler, for appellant. Fred. H. Bowers and Milo Feightner, for appellees.

HOTTEL, C. J.

Appellant brought this action for partition of certain real estate in Huntington county, Ind. Appellees filed a special answer to the complaint, and appellant's demurrer thereto was overruled. A demurrer was sustained to appellant's reply, and, upon his refusal to plead further, judgment was rendered in favor of appellees and partition denied. The errors assigned and relied upon are: (1) That the court erred in overruling appellant's demurrer to appellee's answer; (2) that the court erred in sustaining the demurrer to appellant's reply.

To a complaint for partition the sufficiency of which is not questioned, appellees addressed a special answer, which, in substance, shows appellant and the appellees, except Elizabeth Andrews, to be the owners in common of the remainder in the real estate here involved; that Amy Andrews, former owner of a life estate in said property, has sold one-eighth of the same to appellee Elizabeth Andrews and the balance to certain others of appellees. In reply to this answer, appellant averred that Elizabeth Andrews, the owner of the undivided one-eighth interest in the life estate of Amy Andrews, is the only person who owns any part of said life estate, and does not also own a part of the undivided remainder; that Elizabeth Andrews does not own any part of the undivided remainder and is not in actual possession of said real estate; that said Amy Andrews had long since sold all her interest in said real estate and is not in possession thereof. Appellant admits that prior to March 6, 1909, the law of Indiana did not permit partition by remaindermen while a life estate in the property was outstanding, but insists that the Legislature on that date provided for partition of lands under such circumstances. The act of 1909 (Acts 1909, p. 339) is as follows: “When any person shall own an undivided interest in fee simple in any lands, and at the same time shall own a life estate in the remaining portion of any such lands, or any part thereof, then in any such case, such person so owning such fee and life estate, or the person or persons owning the fee in such lands subject to such undivided interest in fee and such life estate in any such lands, may compel partition thereof and have such fee-simple interest in any such lands so held, set off and determined in the same manner as lands are now partitioned by law.”

Prior to the above act, the common-law rule prevailed in this state, viz., that “only one having both title and possession or right of possession vested in him could maintain an action for the partition of real estate; that a remainderman could not maintain such action because he had title but not possession or right of possession.” Tower v. Tower, 141 Ind. 223-224, 40 N. E. 747;Stout v. Dunning, 72 Ind. 343;Coon v. Bean, 69 Ind. 474;Schori v. Stephens, 62 Ind. 441-448.

In some jurisdictions, however, this rule has been abrogated, and under particular statutes, which do not require the plaintiff to be in possession or entitled thereto, it has been held that a reversioner or remainderman may maintain partition against the owner of the remaining undivided interest in remainder or reversion, although the whole premises are subject to a life estate. Scoville v. Hilliard, 48 Ill. 453;Cook v. Webb, 19 Minn. 167 (Gil. 129); Hayes v. McReynolds, 144 Mo. 348-353, 46 S. W. 161; Smith v. Gaines, 38 N. J. Eq. 65; Drake v. Merkle, 153 Ill. 318, 38 N. E. 654.

[1] While it is true that statutes in derogation of common law are to be strictly construed, it is equally clear that “the intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent.” 11 Lewis' Sutherland on Statutory Construction (2d Ed.) § 363; Lime City, etc., Ass'n v. Black, 136 Ind. 545, 35 N. E. 829;Board, etc., v. Board, etc., 128 Ind. 295, 27 N. E. 133.

[2] As was said in Lime City, etc., Ass'n v. Black, 136 Ind., at page 555, 35 N. E. 833: “The intent of a statute, as collected from an examination of the whole and all its parts, will prevail over the literal import of particular terms, and control the strict letter of such terms when the letter would lead to injustice and contradictions.” It has also been said that: “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that intention. The intent prevails over...