Vail v. Rinehart
| Decision Date | 19 January 1886 |
| Docket Number | 11,642 |
| Parties | Vail, Executor, et al. v. Rinehart |
| Court | Indiana Supreme Court |
From the Pulaski Circuit Court.
The judgment is reversed with costs, and the cause is remanded for a new trial and for further proceedings.
D Turpie, G. Burson and R. L. Mattingly, for appellants.
S. P Thompson, for appellee.
On the 29th day of June, 1883, appellee, Rinehart, as sole plaintiff, commenced this action against the appellants Benjamin F. Vail, executor of the last will of Sarah A. Vail deceased, Kate H. Root and Deloss Root, James N. Huston, administrator of the estate of William Huston, deceased, and surviving partner of the firm of James N. & Wm. Huston, William B. Shepherd and Hugh Dickey, as defendants.
In his complaint the appellee alleged that on the 9th day of February, 1874, Nathan S. and David H. Hazen purchased at public auction from the treasurer of Pulaski county, at the annual sales of lands for taxes delinquent thereon, certain lands, particularly described, in such county; that on the 16th day of February, 1876, Nathan S. Hazen purchased of the treasurer of such county, at public auction, at the annual sale of lands for taxes due and delinquent thereon, certain other lands, particularly described, in Pulaski county; that at the times such taxes were assessed, the lands described were subject to taxation, and were duly listed and assessed for taxation; that such taxes, at the times of such sales, were due, delinquent and wholly unpaid; that when the two years allowed by law for the redemption of such lands by the owner thereof had expired, the auditor of Pulaski county executed tax deeds to Hazen and Hazen, and Nathan S. Hazen, in due form; and Hazen and Hazen, and Nathan S. Hazen, then and there surrendered to such auditor the certificates of sale, issued to them at the dates of such sales by the treasurer of such county. Copies of such tax deeds were filed with, and made parts of, appellee's complaint.
And appellee said that by deed from Hazen and Hazen he held all their right and title to the lands described, and, by virtue of such deed, he owned and held the lien for such taxes and interest, and for the improvements thereinafter mentioned; that appellee and the Hazens had paid all the taxes against the lands described since the same were sold as aforesaid; that the taxes so paid, and the purchase-money paid for the lands at such sales thereof, amounted to one thousand dollars, and the interest thereon amounted to fifteen hundred dollars. Copies of such tax receipts were filed with the complaint, as parts thereof. And appellee averred that he had made lasting and valuable improvements on the lands described, by ditching and fencing the same, which were reasonably worth to such lands and enhanced their value one thousand dollars, which had not been, nor any part thereof, paid or tendered him by any person; that appellant Kate H. Root was the owner of such lands, and Deloss Root was her husband, and held a mortgage on the lands; and that each and all the other appellants claimed some interest in such lands by way of mortgage or other lien thereon, except appellant Benjamin F. Vail, executor, etc., of Sarah A. Vail, deceased, who claimed an interest in the lands, because they were the property of his testatrix at the time of her death, and were liable to be made assets for the payment of the debts of her estate. And appellee averred that the claims and liens of all the appellants were subject and subsequent to his liens for taxes, and he demanded judgment for four thousand dollars, and the sale of such lands for the payment thereof, and for all other proper relief.
Answers and replies were filed, putting the cause at issue, and, upon final hearing had, the court found for appellee in the sum of $ 2,126.92, and ordered that such sum, with interest and costs, be paid into court for the use of appellee, within ninety days from the date of the decree; and that, in default of such payment, the lands should be sold, etc. Before the hearing, the suit was dismissed as to the defendant Huston, and the defendant Shepherd made default.
The only error assigned here by the appellants is the overruling of their motion for a new trial. Under this error the rulings chiefly complained of by appellants' learned counsel related to the exclusion of offered evidence tending to sustain the special paragraphs of appellants' answers, to which the appellee's demurrers had been overruled by the court. There is a marked incongruity, we think, between the rulings of the circuit court upon the demurrers to the special paragraphs of answer and its rulings in the exclusion of offered evidence. This may be accounted for, to some extent, at least, by the fact apparent in the record, that, during the progress of the cause in the trial court, there was a change in the judges of the court. But whatever may have been the cause of these inconsistent rulings, it seems clear that some of such rulings must be erroneous.
Cross errors have been assigned by appellee which call in question (1) the overruling of his demurrer to the third paragraph of the answer of appellants Benjamin F. Vail and Kate H. Root, and (2) in overruling his demurrer to the second and third paragraphs of the separate answer of Kate H. Root, "if the same be in the record." Before considering any of the questions arising under the error assigned by the appellants, it seems to us that, in the natural order of things, we should first dispose of the cross errors, of which appellee complains, especially so, because it is manifest that if the paragraphs of answer mentioned in such cross errors should be held bad on demurrer, the rulings of the trial court, in the exclusion of evidence offered to sustain such paragraphs, if erroneous, would be at most harmless errors. Therefore we will first consider and decide the questions presented by appellee's cross errors in the order of their statement.
In the third paragraph of their answer, the appellants Benjamin F. Vail and Kate H. Root alleged that on the 4th day of December, 1882, the appellant Vail, as administrator with the will annexed of Sarah A. Vail, deceased, filed his petition in the circuit court of Dearborn county, Indiana, in which county his decedent, Sarah A. Vail, resided at the time of her death, and wherein letters of administration were granted him on her estate; that the purpose of such petition, as stated therein, under the oath of such administrator, was to sell his decedent's real estate to make assets for the payment of the debts of her estate; that the real estate in Pulaski county, mentioned in appellee's complaint herein, was a portion of the real estate described in such administrator's petition; that one of the defendants in such petition was Enoch Rinehart, the plaintiff in this cause; that Enoch Rinehart was personally served with process issued on such petition, and appeared thereto; and that such proceedings were thereupon had as that afterwards, to wit, on the 6th day of September, 1883, the Dearborn Circuit Court found and adjudged that Enoch Rinehart had no interest, claim, right or title to or in the lands mentioned in his complaint herein, and that the same should be sold for the payment of the debts mentioned in such petition; that on the 29th day of June, 1883, and during the pendency of the aforesaid petition against him in the Dearborn Circuit Court, Enoch Rinehart commenced this suit in the Pulaski Circuit Court; and such appellants said that when Enoch Rinehart had been served as a party defendant, in the suit pending in the Dearborn Circuit Court, and had appeared and answered therein, he was bound to set up, in such suit, any lien which he had on any lands mentioned in the petition in such cause, and, upon the establishment of his lien, to demand judgment therefor and for the foreclosure thereof, in the Dearborn Circuit Court, and that he could not afterwards commence a suit in any other court for the adjudication or settlement of such lien. Wherefore, etc.
Appellee's demurrer to this paragraph of answer was overruled below, and this ruling is assigned here as a cross error. The sufficiency or insufficiency of the facts stated in the paragraph to constitute a defence to his action, however, is a question which appellee's counsel has failed to discuss in his able and elaborate brief of this cause. Whether the paragraph is to be regarded as a plea of the pendency of a prior suit in abatement of appellee's present action, or as an answer of former adjudication in bar of such action, it seems to us that the facts stated therein were sufficient to withstand appellee's demurrer thereto. As a plea in abatement the paragraph was objectionable, because it was not verified, but that objection did not render the plea bad on demurrer, and...
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