Vancleave v. Milliken

• Decision Date: 29 November 1859
• Citation: 13 Ind. 105
• Parties: Vancleave and Others v. Milliken
• Court: Indiana Supreme Court

13 Ind. 105

Vancleave and Others v. Milliken

Supreme Court of Indiana

November 29, 1859

From the Montgomery Circuit Court.

The judgment is affirmed with costs.

S. C Willson and J. E. McDonald, for appellants.

I Naylor, for appellee.

OPINION

Hanna J.

Suit to recover the possession of land, and averment, in the complaint, that it belongs to the plaintiffs, and is in possession of the defendant, and had been for six years past.

Answer, statute of limitations, generally; and that the land had been sold by order of the Probate Court, by the administrator of the estate of the elder Vancleave, to one Lane, on the 12th of July, 1834, under whom the defendant holds as a remote vendee, &c.; and that the suit had not been commenced within five years after the confirmation by said Court of said sale; nor within twenty years after the cause of action accrued.

Reply, that plaintiffs were the only heirs of the said Vancleave, deceased, and that they were not made parties to any application to sell said lands, nor had they any notice thereof, and that, therefore, said sale was void; that they were, at the time of said sale, infants, and so continued until the year 1845, and that said action was brought within twenty years after they arrived at full age.

Demurrer to the reply sustained.

This raises the only question in the case.

By a general statute, actions for the recovery of the possession of lands must be brought within twenty years. 2 R. S. p. 76. By another section, an action to recover lands sold by an administrator, upon a judgment directing such sale, brought by a party to the judgment, &c., must be so brought within five years after the sale is confirmed. Id., p. 75. It is further provided (id., § 215) that "any person being under legal disabilities when the cause of action accrues, may bring his action within two years after the disability is removed."

The only question, in the case at bar, is, whether these latter limitations are applicable herein, under the circumstances.

It is insisted that the pleadings show that the whole proceedings of the Probate Court, upon the application to sell said lands by the administrator, were void, because the record in the said application to sell does not show that the heirs of the decedent, the present plaintiffs, were notified of the pendency of such proceedings; and that, therefore, the deed based upon those proceedings is a nullity; and that no such rights could be acquired, by virtue of said deed and possession held under the same, as would enable the defendant to avail himself of the limitations last above referred to.

The case of Pillow v. Roberts, 13 How. (U.S.) 472, is somewhat in point. That was an action of ejectment in which the plaintiff relied upon a regular chain of title from the United States to himself. The defendant relied upon a tax title, and possession for more than five years under it. The Court passed upon the question of the admissibility of the tax collector's deed as evidence; but, also, held further, that "assuming these deeds to be irregular and worthless, the Court erred in refusing to receive them in evidence, in connection with proof of possession, in order to establish a defense under the statute of limitations." That statute (of the state of Arkansas, where the land was situate, provided that "actions against the purchaser. &c., for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, shall be brought within five years after the date of such sales, and not after." It is held by the Court, in that case, that such statutes are statutes of repose, and that it is not necessary that he who claims their protection should have a good title; that such statutes would be of little use if they protect those only who could otherwise show an indefeasible title to the land and, hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and, of course, adversely...