Thorp v. Hanes
| Decision Date | 11 May 1886 |
| Docket Number | 12,349 |
| Citation | 6 N.E. 920,107 Ind. 324 |
| Parties | Thorp et al. v. Hanes |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 17, 1886.
From the Marshall Circuit Court.
The judgment is reversed, at appellee's costs, and the cause is remanded, with instructions to sustain appellants' motion for a new trial, and to proceed with the case in accordance with this opinion.
T. J Payne and S. Parker, for appellants.
A. C Capron and J. D. Thomas, for appellee.
Appellants claim to be the owners of, and by this action seek to quiet the title to, the real estate in dispute, and to recover rents and profits.
Appellee also claims to be the owner of the real estate, and, by a cross complaint, asks that his title be quieted as against any claim by appellants. The court below decided in his favor, and rendered a decree accordingly.
The case comes here upon the evidence, which, in brief, is as follows: John S. Thorp, a resident of Marshall county. and the owner of one hundred and twenty acres of land in that county, died intestate in 1854, leaving Alice Thorp, his widow, and five children surviving, as his only heirs at law. The widow Alice was a second wife. Of this marriage one child was born, but died before the death of its father, John S. Thorp. The five children were the issue of a former marriage. The land was acquired by John S. Thorp during his first marriage. Appellants are the children and grandchildren of John S. Thorp.
In 1857, the widow Alice instituted an action in the common pleas court of Marshall county for a partition of the land, and made defendants thereto the said children of John S. Thorp, some of whom were minors.
The land, of which that in controversy is a part, was set off to said Alice as her one-third interest in the lands of her deceased husband. In 1863, she sold, and by warranty deed conveyed the land so set off to her to John T. Stiver. The land has since been sold several times, and finally the portion in controversy came into the possession of appellee, and has remained in his possession, under a warranty deed, executed on the 16th day of October, 1875. The widow Alice died intestate, in May, 1882. Since the land was set off to her, she and her grantees have been in the uninterrupted possession of it, although the general rumor in the neighborhood has been that the Thorp children claimed that it belonged to them.
In her petition for partition, the widow Alice alleged, amongst other things, that as the widow of John S. Thorp, she was the owner in fee simple, and entitled to the undivided one-third part, of the lands described as having belonged to her deceased husband, and she asked that her "proper proportion, to wit, one-third part of the same," might be set off by metes and bounds, "and for all other proper relief."
The children of Thorp being non-residents of the State, notice of the pending action was given by publication. The affidavit for publication, attached to the complaint, was made by the attorney for the widow, and contained the statement only, that the children, naming them, were non-residents of the State.
In the published notice, it was stated that the widow had filed her petition for partition. No mention was made, either in the published notice or in the affidavit, that any question of title was involved in the action.
After all the defendants had been defaulted, the minor children, by guardian ad litem, filed an answer in which it was stated that they knew of no reason why the prayer of the mother's petition should not be granted; and in which they asked that by reason of their tender years the court should protect their interests.
Upon the hearing of the case, preliminary to the final decree, the court found that the widow, Alice, was the owner in fee simple of the undivided one-third part of the real estate. In the final decree, and in appointing the commissioners to make partition, it was ordered and decreed that the one-third portion in value of the land should be set off to the widow in severalty.
In their report the commissioners stated that they had set off to the widow Alice, forty acres of the land, "as her fee simple interest, * * to have and to hold by the said Alice Thorp, her heirs and assigns in severalty, forever."
This report was by the court accepted, approved and confirmed, and it was ordered that partition should be made as in said report set forth.
Appellee rests his claim upon the record in the partition proceeding, and claims that in that proceeding all of the rights and title of appellants to the land in controversy were adjudicated, and that that adjudication is a bar to any claim of title that they may now make.
This contention can not be maintained. There having been no child of the second marriage living at the death of the father, it is conceded in argument, and settled by our cases, that the widow, as the second wife, took no greater interest in her husband's lands than she would have taken had no child been born of that marriage. Our cases also settle the rule in such a case to be that the land, which at the death of the husband descends to the second wife, at her death descends to the children of the husband by his former wife. Ogle v. Stoops, 11 Ind. 380; Martindale v. Martindale, 10 Ind. 566; Rockhill v. Nelson, 24 Ind. 422; Louden v. James, 31 Ind. 69; Longlois v. Longlois, 48 Ind. 60; Long v. Miller, 48 Ind. 145.
The primary object of an action in partition is not to create or vest a new title, nor to settle conflicting titles, but to sever the unity of possession and allot the respective shares. It proceeds upon the theory that the parties have title to the property which they hold in common. Avery v. Akins, 74 Ind. 283; Utterback v. Terhune, 75 Ind. 363; Miller v. Noble, 86 Ind. 527; Kenney v. Phillipy, 91 Ind. 511; Bryan v. Uland, 101 Ind. 477.
It is nevertheless true that in a proceeding for partition, as between persons claiming present and conflicting titles, the question of title may be presented by the pleadings, and that question tried and settled. When the question is thus properly presented and determined, the adjudication is final and conclusive as between the parties to the action. Godfrey v. Godfrey, 17 Ind. 6; Milligan v. Poole, 35 Ind. 64; Cravens v. Kitts, 64 Ind. 581; McMahan v. Newcomer, 82 Ind. 565; Miller v. Noble, supra; Kenney v. Phillipy, supra; Fleenor v. Driskill, 97 Ind. 27. While the title may be thus put in issue and tried, the adjudication can only operate upon existing titles, and will not affect after-acquired titles.
It becomes important, therefore, to determine what title, if any, appellants, as the children and heirs of John S. Thorp, had in the portion of the land that descended to the widow, or could have in the portion set off to her. Section 2483, R. S. 1881, which is the same as section 17, 1 R. S. 1876, p. 411, provides that if a husband die testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple free from all demands of creditors, where it does not exceed ten thousand dollars in value. Under this section the widow takes by descent, and as an heir of her husband. Bowen v. Preston, 48 Ind. 367.
The proviso to section 2487, R. S. 1881, which is the same as section 24, 1 R. S. 1876, p. 412, is, that if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which at his death descends to such wife shall, at her death, descend to his children.
In a practical point of view, the childless second wife takes but a life-estate in her husband's real estate, as against his children by a former wife, because, at her death, it goes to them, under the above statutes. Some of the former cases first above cited, seem to have adopted this practical view as the legal one, and hence treated the estate of such second wife as a life-estate only. Of course, if her estate were but a life-estate in a legal point of view, the fee in the one-third set apart to her would go by descent to the children. In such case, the children would inherit from the father and not from the widow, and the real estate thus set apart might be sold, subject to the widow's life-estate, for the payment of the husband's debts. This statute, however, provides that the one-third of the husband's lands shall descend to the widow, in fee...
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