Smith v. Gorham

• Decision Date: 22 June 1889
• Parties: Smith et al. v. Gorham.
• Court: Indiana Supreme Court

119 Ind. 436

21 N.E. 1096

Smith et al.

v.Gorham.

Supreme Court of Indiana.

June 22, 1889.

Appeal from circuit court, Hendricks county; Thomas L. Sullivan, Judge.

Petition by Thornton G. Gorham, administrator, to sell land belonging to his intestate. John N. Smith and others, who claimed to own the land, were make parties defendant, and they appeal.

Davis & Martz, for appellants. L. M. Campbell, for appellee.

Berkshire, J.

The administrator, the said Thornton G. Gorham, filed his petition to sell real estate for the payment of debts to which the heirs of the decedent were made parties, and proper notice given. The appellants, who were not of the heirs of the decedent claiming to have an interest in the real estate which the administrator was seeking to have sold, were, on their own application, made parties defendant to the petition, and appeared and filed an answer in two paragraphs, to which demurrers were filed by the administrator, and overruled by the court. Among other things which are averred in the answer, we find the following: (1) That the indebtedness alleged in the petition for the payment of which the administrator was asking that the real estate be sold had no existence in fact; (2) that there was due the estate from one James E. Smith $1,000, which, if collected, was amply sufficient to pay all of its indebtedness; (3) that by mistake the real estate described in the administrator's petition was conveyed to Archie Smith and the decedent jointly, they at the time being husband and wife, and did not, therefore, belong to the decedent as the survivor at her death, but upon the death of Archie Smith descended to his heirs, subject to a life-estate in the decedent, Nancy, she being a second wife without issue; (4) that the appellants were the owners of the said real estate in fee-simple when the administrator filed his petition. The administrator filed a reply in three paragraphs, the first of which is a general denial. The principal indebtedness for the payment of which the administrator was asking an order to sell the said real estate was in the form of an adjudicated allowance made in the Hendricks circuit court upon the trial of a denied claim which had been filed against said estate. The second paragraph of the reply is to that part of the answer which denied the existence of the indebtedness, and it alleges in substance the filing of the claim, the refusal of the administrator to allow it, issue joined thereon, a trial and judgment allowing the claim; that the administrator made the best defense he could thereto; and that the appellees appeared at the trial, and with the consent of the administrator, through their attorney, joined in resisting the allowance of the claim. The third paragraph of reply relates to that part of the answer alleging that the appellants are the owners in fee-simple of the said real estate, and avers that they have an interest therein, but that they acquired the interest from the heirs of the decedent, and that the same is subject to sale in their hands. Demurrers were filed and overruled to these paragraphs of reply, and the appellants excepted. The issues joined having been submitted to the court, it found in favor of the administrator, and over a motion for a new trial made an order for the sale of the real estate. The appellants reserved an exception to the overruling of their motion for a new trial. The appellants assign...