Stephenson v. Boody

• Decision Date: 10 October 1894
• Citation: 139 Ind. 60,38 N.E. 331
• Parties: STEPHENSON et al. v. BOODY.
• Court: Indiana Supreme Court

139 Ind. 60

38 N.E. 331

STEPHENSON et al.

v.BOODY.

Supreme Court of Indiana.

Oct. 10, 1894.

Appeal from circuit court, Bartholomew county; W. C. Duncan, Special Judge.

Action by Sarah Stephenson and others against Charles W. Boody for partition of certain real estate. From a judgment for defendant, plaintiffs appeal. Affirmed.

Cox & Cox, for appellants. Hacker & Remy and M. D. Emig, for appellee.

McCABE, J.

The appellants, Sarah Stephenson, Elizabeth Hummel, George W. Tull, Stoughton C. Tull, John J. Tull, William A. Tull, and Chambers H. Tull, sued the appellee for partition of certain real estate described in the complaint, situate in Bartholomew county, Ind. A great number of rulings upon demurrers to answers were made, which have been assigned for error. There was a special finding of the facts, upon which conclusions of law were stated by the court in favor of the appellee, upon which he had judgment over a motion for a new trial. The errors assigned also call in question the conclusions of law and the action of the court in overruling appellants' motion for a new trial. It has often been held by this court that where the same questions are presented on the special findings and conclusions of law that arise on the demurrers to pleadings, as is the case here, the rulings upon the demurrers are immaterial. For that reason we do not examine the errors assigned on the rulings on the demurrers to pleadings. The substance of the special finding is as follows: That Richard Tull died on April 10, 1870, seised in fee simple of certain lands situate in said county, particularly described, among which was the land sought to be parted in this suit. That he left surviving him as his heirs, his widow, Nancy J. Tull, she being his second wife, and childless, the plaintiffs herein, and one Richard J. Tull, Jr., his children by a former marriage. That on April 18th, after the death of said Richard J., Sr., the said Nancy J. Tull conveyed by warranty deed all her interest in said lands to Philip J. Hummel. That she afterwards sued said Hummel and said children in the Bartholomew circuit court to set aside said deed to Hummel for fraud and undue influence practiced upon her by Hummel, and for partition against said children, claiming only a life estate in the undivided one-third of said lands; and that said children are the owners as tenants in common of the whole of said lands, subject only to her alleged life estate. That on August 8, 1870, said court set aside said deed upon the ground alleged, and also entered a decree of partition in favor of said widow, and set off the land described in the complaint to said widow for and during her natural life, and these plaintiffs, as the children and heirs of said deceased, were adjudged and decreed to be the owners in fee simple of the whole of said real estate of which decedent died seised, subject only to the life estate of said widow therein. That thereafter, on May 21, 1872, said Nancy J. Tull sold and conveyed by warranty deed to the defendant, Boody, all her right, title, and interest as set off to her in said suit in said lands, being the same land described in the complaint herein. That on July 27, 1871, the plaintiffs John J. Tull and wife and George W. Tull and wife sold and conveyed by warranty deed to Wallis Wilson all their undivided interests in and to the real estate owned by decedent at his death, including that described in the complaint herein. That on January ---, 1872, said Wallis Wilson sold and conveyed the shares and interests so acquired by him to defendant, Boody. That on April 4, 1872, the plaintiffs Sarah Stephenson and husband, William A. Tull, and Elizabeth Hummel and husband sold and conveyed by warranty deed all their shares in and to the real estate of said decedent as his heirs, being the three-eighths thereof, including the lands described in the complaint herein. That on January 8, 1872, the plaintiff Stoughton C. Tull and wife sold and conveyed by warranty deed his undivided one-eighth interest in said land, including that described in the complaint herein. That on December 25, 1871, the plaintiff Chambers H. Tull and wife by warranty deed conveyed to defendant, Boody, all of his undivided interest and share as heir of said decedent in the lands of said decedent, including that described in the complaint herein. That the said defendant, Boody, and Wallis Wilson, in each of their purchases from the plaintiffs, paid the full value of a fee-simple title per share, less only the value of the life estate of the widow therein. That at the time of making each and all of said sales by these plaintiffs they represented and held themselves out to be the owners in fee simple and tenants in common of the whole of said real estate, subject only to the life estate of said widow as fixed by the judgment of said court; and the defendant purchased the real estate in question in good faith, believing such representations to be true. That defendant, Boody, in good faith believing that the title he had so purchased was perfect and indefeasible, had expended large sums of money in lasting and valuable improvements on said land, with the knowledge and acquiescence of plaintiffs, of the value of $2,500, and that said improvements were made during the lifetime of said widow, who died August 28, 1888. That at the time of the death of Richard J. Tull, Sr., and at the time of said suit in partition in the Bartholomew circuit court, and for a long time prior thereto, the supreme court continuously construed the statute of descents in such cases to invest the childless second wife with a life estate only in the one-third of her deceased husband's real estate. That the defendant knew Richard J. Tull, deceased, in his lifetime; knew of his first and second marriages. That plaintiffs were his children by a former wife, and that there were no children by his second marriage.

(1) The conclusions of law are to the effect that Nancy J. Tull, the surviving widow of Richard J. Tull, Sr., as such widow inherited the undivided one-third of the real estate of her said deceased husband in fee simple, and, being a childless second wife of said decedent, the descent of said real estate was cast by law upon the plaintiffs, as the children of said decedent by a former marriage, and on the death of said surviving widow the said plaintiffs were entitled to inherit from said widow as forced heirs under the statute of descents in such cases. (2) That the title to the real estate described in the complaint was put in issue in the partition suit between the said widow and these plaintiffs, and determined on August 8, 1870, in the Bartholomew circuit court. (3) That the decree and judgment rendered therein, although founded upon an erroneous construction of the statute of descents, being unappealedfrom, is binding upon the parties thereto, and upon these plaintiffs, constituting a rule of property. (4) That by reason of all the facts set forth in the special findings herein, the plaintiffs, and each of them, are estopped from setting up any title, claim, or interest in and to the real estate described in the complaint herein, or from denying the fee-simple title of the defendant, Boody. There is also a general finding against the plaintiffs on their complaint, and for the defendant on his answer. But such general finding must be disregarded as a general verdict must when a special one on demand has been returned. Railway Co. v. Balch, 105 Ind. 93, 4 N. E. 288.

By a long line of decisions of this court, beginning with Martindale v. Martindale, 10 Ind. 566, at the May term of this court for 1858, and extending up to the case of Utterback v. Terhune, 75 Ind. 363, at the May term, 1881, it was held that by the provisions of sections 2483 and 2487, Rev. St. 1881 (sections 2640, 2644, Rev. St. 1894), a second or subsequent wife, having no child by her husband, took a life estate only in his lands, where he left upon his death children alive by a former wife. At the May term, 1881, in Utterback v. Terhune, supra, those decisions were overruled, and it was decided that a second or subsequent wife, having no child by her husband, inherited a fee simple in the undivided one-third of his land, where he died leaving children alive by a previous wife, and that at her death such children became her forced heirs. This last ruling is now settled and adhered to as the correct construction of this...