Wachstetter v. Johnson

• Decision Date: 22 April 1915
• Docket Number: No. 8536.,8536.
• Citation: 61 Ind.App. 659,108 N.E. 624
• Parties: WACHSTETTER et al. v. JOHNSON et al.
• Court: Indiana Appellate Court

61 Ind.App. 659

108 N.E. 624

WACHSTETTER et al.

v.JOHNSON et al.

No. 8536.

Appellate Court of Indiana, Division No. 2.

April 22, 1915.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Thomas E. Johnson and others against Emeline D. Wachstetter and others. Judgment for the plaintiffs, and defendants appeal, and plaintiffs assign cross-error. Reversed and remanded in part, with directions, and affirmed in part.F. Winter, Joseph B. Kealing, and Martin M. Hugg, all of Indianapolis, for appellants. Gavin, Gavin & Davis, of Indianapolis, for appellees.

MORAN, J.

On November 18, 1905, Jacob Wachstetter departed this life, testate, at Marion county, Ind. By his will he bequeathed and devised all of his property to appellants; and by reason thereof they claim to be the owners in fee simple of certain real estate in the city of Indianapolis, basing their title on a warranty deed executed by the father of appellees and a sheriff's deed executed by the sheriff of Marion county to one John A. Heidlinger, a grantor of Jacob Wachstetter. Appellees claim to be the owners in fee simple of an undivided one-third part in value of said real estate, asserting title through their mother, on the theory that their father was a remote grantor to Jacob Wachstetter of the real estate in question, and that their mother died subsequent to their father, and never joined in the deed of conveyance nor parted with her inchoate interest therein. The complaint is in two paragraphs. The first seeks to quiet title to an undivided one-third part of the real estate in question and for partition, alleging that the real estate is not susceptible of division, and should be sold and the proceeds distributed among the parties according to their interests. By the second paragraph of complaint, appellees seek to redeem an undivided one-third part of the real estate from a lien based upon a decree of foreclosure of a purchase-money mortgage; that the amount of the lien be declared, and the amount, if any, be fixed that appellees should pay; the lien be adjudged primarily against the undivided two-thirds interest in the real estate, and after exhaustion to be a lien on the undivided one-third part as owned by appellees; the sheriff's sale be declared ineffectual to carry title; and adjudge within what time appellees may pay whatever amount should be paid by them; an accounting of the rents and profits be had; the real estate be sold and the proceeds be distributed according to the interests of the parties. Appellants filed a cross-complaint against appellees, alleging the ownership of all the real estate in question and asking that their title be quieted. Appellants answered both paragraphs of complaint by a general denial, and addressed a second paragraph of answer to the second paragraph of complaint, alleging that appellees' cause of action did not accrue within 15 years before the bringing of the same. Appellees replied in general denial to the second paragraph of answer, and for a second paragraph of reply alleged that their mother, Margaret E. Johnson, was from 1860 to November, 1907, a person of unsound mind. Appellees filed an answer in general denial to appellants' cross-complaint. The cause was tried by the court, and the facts specially found and conclusions of law stated thereon in favor of appellees. Exceptions were reserved by appellants to the conclusions of law, and overruling the motion for a new trial. Judgment was rendered on the conclusions of law.

The errors assigned are: (1) Overruling of appellants' motion for a new trial; (2) the error of the court in stating its conclusions of law, numbered from 1 to 12, on the facts specially found.

We proceed first to dispose of the questions arising on the conclusions of law, and in doing so the principal questions presented by the motion for a new trial will be disposed of.

A condensed statement of the uncontroverted facts, as gleaned from the special findings of facts, covering some 66 pages of the record, is: On May 25, 1835, Oliver H. Smith became the owner of lots 5 and 6 in block 52 in the city of Indianapolis, and by mesne conveyances Isaac E. Johnson, a married man, and father of appellees, became the owner in 1862 of a part and parcel of lots 5 and 6; the title of which is now in controversy. A part of the same he obtained by deed from Esther Stanley, and a part by deed from William J. Larue; both tracts of which were incumbered at the time, and which incumbrances he agreed to pay as a part of the purchase money, and, to further indemnify Larue, he executed to him an indemnifying mortgage on both tracts of real estate, his wife not joining therein. Soon afterwards, and before he had discharged the incumbrances, Johnson sold the property in question and other property to John A. Heidlinger, for $16,500, and agreed to convey the same by a warranty deed. Heidlinger did not know at this time that Johnson was a married man, nor did he know that the real estate was incumbered. At the time he made the purchase, he paid Johnson $200 in cash. An examination of the records disclosed incumbrances on the property, consisting of mortgages and judgment liens. A mortgage executed by Stephen M. Norris to Obadiah Harris had been foreclosed prior to the purchase by Johnson, but no sale had. After obtaining the information as to the liens, it was agreed between Heidlinger and Johnson that Heidlinger should obtain a sheriff's deed upon a decree of foreclosure of the mortgage covering the real estate in question, in addition to taking a deed of conveyance from Johnson, in order to obtain a clear title; and out of the purchase price all incumbrances should be satisfied, and the balance of the purchase price to be paid to Johnson, which was done. On May 9, 1864, Johnson conveyed by warranty deed to Heidlinger, and the sale of the real estate by the sheriff took place on May 28, 1864, and on the same day a sheriff's deed was executed to Heidlinger in consideration of the amount of his bid, being $50; he being the only bidder therefor. Margaret E. Johnson, mother of appellees, was a person of unsound mind from 1860 to the date of her death in 1907, having been judicially declared of unsound mind March 22, 1883, in the Owen circuit court. Margaret E. Johnson did not join in the deed with her husband to Heidlinger, nor was she a party to the foreclosure proceedings, nor a party to the creation of any of the liens against the real estate in question. Heidlinger conveyed the real estate in question to Jacob Wachstetter, on February 23, 1865, who went into possession immediately thereafter, and his possession and title were undisturbed until June 1, 1883, when the guardian of Margaret E. Johnson asserted her claim of right to an undivided one-third part of the real estate. Jacob Wachstetter had no actual knowledge that Isaac E. Johnson was a married man at the time he took the deed of conveyance from John A. Heidlinger. Isaac E. Johnson departed this life January 13, 1883, intestate, and Jacob Wachstetter died November 18, 1905, testate. Appellees are the children of Isaac E. Johnson and Margaret E. Johnson. Appellants are the legatees and devisees of Jacob Wachstetter.

[1] On May 6, 1853, tenancy by dower was abolished by statute, and thereafter the rights of the widow in the lands of her husband was determined by statute. In this cause our investigations include but two sections of the enactment in lieu of or a substitute for dower, viz., sections 17 and 27 (sections 3014 and 3029, Burns' R. S. 1914). The first section referred to provides:

“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: Provided, however, that where the real estate exceeds in value ten thousand dollars, the widow shall have one fourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only, as against creditors.”

The latter section reads as follows:

“A surviving wife is entitled, except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law, and also of all lands in which her husband had an equitable interest at the time of his death: Provided that if the husband shall have left a will, the wife may elect to take under the will, instead of this or the foregoing provisions” of this act.

It will be noticed that the former section refers to lands which the husband died seised of; while the latter section refers to lands of which he was seised during the marriage, but was conveyed without the wife joining therein as the law provides. Under section 17, it has been held that the widow takes as an heir, while under section 27 she takes by reason of her marital rights. Haggerty v. Wagner, 148 Ind. 625, 48 N. E. 366, 39 L. R. A. 384;May v. Fletcher, 40 Ind. 575;Bowen v. Preston, 48 Ind. 367;Fry v. Hare, 166 Ind. 415, 77 N. E. 803;Graves v. Fligor, 140 Ind. 25, 38 N. E. 853;McKinney v. Smith, 106 Ind. 404, 7 N. E. 3.

[2] And, further, a married woman is regarded as a purchaser for a valuable consideration of all the property which accrues to her by virtue of her marriage. Staser v. Gaar, etc., 168 Ind. 131, 79 N. E. 404;Richardson v. Schultz, 98 Ind. 429;Derry et al. v. Derry, 74 Ind. 560;Green v. Estabrook, 168 Ind. 123, 79 N. E. 373, 120 Am. St. Rep. 349.

[3] By the Acts of 1875 (section 3052, Burns 1914), where the inchoate interest of a married woman is not directed to be sold by the judgment or barred by virtue of such sale, it becomes absolute and vests in the wife in the same manner and to the same extent as upon the death of her husband. The provisions of this act do not apply to sales of real estate upon judgments rendered prior to the taking effect of the same. It has been held that this act...