Thompson v. Henry

• Decision Date: 14 June 1899
• Docket Number: 18,894
• Citation: 54 N.E. 109,153 Ind. 56
• Parties: Thompson v. Henry
• Court: Indiana Supreme Court

54 N.E. 109

153 Ind. 56

Thompson v. Henry

No. 18,894

Supreme Court of Indiana

June 14, 1899

From the Hendricks Circuit Court.

Affirmed.

Adams & Enloe, for appellant.

E. G Hogate and J. L. Clark, for appellee.

Monks J. Hadley, J., did not participate in the decision of this cause.

OPINION

Monks, J.

This action was brought by appellant to enjoin appellee from removing gravel from the real estate described in the complaint. The court made a special finding of the facts, and stated conclusions of law thereon in favor of appellee, and rendered judgment accordingly. The conclusions of law are challenged by the assignment of errors.

The special findings, so far as necessary to the determination of this case, are substantially as follows: Jesse Hendricks died intestate in 1873, and left, surviving him, his widow (a second and childless wife) and children by his former wife. Afterwards, in 1874, on petition of the widow and a part of the children, partition was made of the land owned by said Hendricks at the time of his death, setting off to the widow one-third thereof for life, and to the children their respective shares in severalty, including the part so set off to the widow. The widow sold and conveyed, by warranty deed the real estate set off to her, and by virtue of said deed and divers mesne conveyances, appellee became the owner of whatever title was conveyed by the warranty deed of said widow. Mark D. Hendricks, one of the children and heirs of Jesse Hendricks, sold and conveyed, by warranty deed, to appellant the part of said real estate set off to him, subject to the life estate of the widow, being the real estate described in the complaint. Said appellant is the owner of whatever title in said real estate was conveyed by said deed. The other facts found, and not set out above, are sufficient to entitle appellant to an injunction against appellee, enjoining him from removing the gravel from said real estate, if the facts set out show that appellant owns said real estate in fee simple, subject to a life estate of said widow. Gwaltney v. Gwaltney, 119 Ind. 144, 21 N.E. 552. If, therefore, appellant owned the real estate described in the complaint in fee simple, subject to a life estate of the widow, the court erred in its conclusions of law.

Prior to the decision of Utterback v. Terhune, 75 Ind. 363, at the May term 1881, of this court, it was uniformly held that, under the provisions of §§ 2483, 2487 R. S. 1881, a second or subsequent wife having no child by her husband took a life estate only in his lands, where, upon his death he left, surviving him, a child or children by a former wife or their descendants. These decisions, however, were overruled in Utterback v. Terhune, supra, and it was held in that case that when a man dies intestate, leaving a second or subsequent wife, and no children or their descendants by such widow surviving, but has children or their descendants alive by a former wife, the interest that such widow takes in his land is a fee simple, which at her death descends from her to said children by the former wife or their descendants, if then living. This is now the settled construction of said sections. Byrum v. Henderson, 151 Ind. 102, 51 N.E. 94; Stephenson v. Boody, 139 Ind. 60, 65, 38 N.E. 331; Haskett v. Maxey, 134 Ind. 182, 187, 19 L. R. A. 379, 33 N.E. 358; Helt v. Helt, 152 Ind. 142, 52 N.E. 699. Ordinarily a judgment in partition simply has the effect to sever the unity of possession, and does not vest in either of the cotenants any new or additional title. After the rendition of such judgment, each cotenant has precisely the same title he had before, except that he holds his share of the whole in severalty, instead of in common. Haskett v. Maxey, supra, 189.

Pleadings in actions for partition may be so framed as to raise and settle questions of title; but, when only partition is asked between tenants in common, no question of title is settled. The complaint in the action brought for partition of the lands of Jesse Hendricks, in 1874, only asked that the respective interests of the widow and children be set off in severalty, and it is settled law that such a pleading...