White v. Suggs

• Decision Date: 04 February 1914
• Docket Number: No. 8,192.,8,192.
• Parties: WHITE et al. v. SUGGS et al.
• Court: Indiana Appellate Court

56 Ind.App. 572

104 N.E. 55

WHITE et al.

v.SUGGS et al.

No. 8,192.

Appellate Court of Indiana, Division No. 1.

Feb. 4, 1914.

Appeal from Circuit Court, Monroe County.

Action by Lizzie White and others against William A. Suggs and others. From a judgment for defendants, plaintiffs appeal Affirmed.Joseph E. Henley and Rufus H. East, both of Bloomington, for appellants. Batman, Miller & Blair and John P. O'Donnell, all of Bloomington, for appellees.

HOTTEL, J.

This is an action brought by appellants against appellees for the possession of certain real estate. Appellees other than George W. Bollenbacher filed a demurrer to the complaint which was sustained by the court. The appellants refused to plead further, and judgment was rendered against them that they take nothing on account of their complaint, and that appellees other than George W. Bollenbacher recover of them their costs. From this judgment appellants appeal and assign as error the ruling of the court in sustaining said demurrer.

The complaint is lengthy, and we indicate only the substance of enough of the facts averred therein to intelligently present the questions raised by the objections urged against it. These facts are as follows: George Bollenbacher died testate in Monroe county, Ind., September 17, 1885, seised with the fee-simple title to the real estate in controversy. Said testator gave to his wife, Margaret, all his property real and personal for her use as long as she remained his widow or during her natural life, except the interest of the testator in the firm property, both real and personal, of Bollenbacher & Sons, which property he devised to his sons Martin C., William P., Samuel M., and Jacob I. Bollenbacher. At the death or remarriage of the widow, all the property of the testator then remaining was to be divided equally among the testator's children, naming them. The testator's wife, Margaret, was named as executrix of said will, but never qualified as such, never remarried, and died November 1, 1898. Some of the children of the testator mentioned in said will died leaving children. The appellants are either children of the testator or children of such deceased children, and they, together with the appellee, George W., constitute the only legatees and heirs of said testator, and the complaint avers facts showing that under the will of such testator they are the owners in fee simple and tenants in common of and entitled to the immediate possession of the real estate described in the complaint; that they have been kept out of such possession for 18 years; that the mesne profits of said real estate during said period are $-; and that by being kept out of possession they have been damaged in said sum.

It will appear from what we have indicated that the complaint avers facts sufficient to constitute a cause of action, and that it should have been held sufficient by the trial court as against the demurrer thereto, unless the additional facts contained therein disclose a defense to such cause of action. The substance of these additional averments are, in brief, as follows: No administration was ever had on the estate of said testator until October 31, 1894, “when a pretended administration was had without authority of law and in express violation of the decedent's act of the state of Indiana.” The title and possession of appellees other than said George W., in and to said real estate, “rests upon certain judicial proceedings which are void, in this, to wit”: On April 6, 1888, the “First National Bank of Bloomington” began an action against the heirs and devisees of said testator, naming them, to recover judgment on a $2,500 note executed by the firm of Bollenbacher & Sons, composed of the testator and said George W., Martin C., and William P. Bollenbacher and to recover judgment against George W. Bollenbacher on two notes for the sums of $2,500 and $5,000, respectively, and executed by said George W. and his father, the testator; such last two notes being secured by a mortgage executed by the testator and his wife, Margaret, on the real estate in question together with other lands of such testator, such mortgage containing an express agreement to pay the debts secured thereby. The plaintiff bank, in said proceeding, sought to foreclose said mortgage, and in its complaint alleged that “no administration had been had on the estate of decedent,” testator; that the executrix named in the testator's will had never qualified, and no letters executory or of administration with the will annexed had ever been issued on said estate. The several defendants to such foreclosure proceeding appeared by counsel and filed separate demurrers and separate answers to said complaint. Said demurrers were for want of sufficient facts. Some of these separate answers were general denials of the complaint, and others set up affirmative defenses, viz.: That the notes were given without consideration; that they were paid; that the notes sued on were for partnership debts; and that such partnership owned property of the value of $13,000, which should be first resorted to after exhausting such mortgaged property. Cross-complaints were also filed in said action by defendants therein other than George W., charging that the notes in such foreclosure suit represented money borrowed by said firm, and that such firm had property ample to pay all claims against it, and asking that, in the event the mortgaged property was insufficient to pay the notes sued on, the residue of such debts should be paid out of the partnership's property. George W. Bollenbacher also filed separate answer to the complaint in said proceeding, the first of which was a general denial, and the second, a plea of payment. Said George W. also filed a cross-complaint, in the first paragraph of which he alleged that he executed the notes as surety only and received no part of the consideration, and asked “that execution be first levied on the property of the testator,” and in the second paragraph he charged that said notes were given by said firm, for the indebtedness of the firm; that said firm was dissolved by the death of the testator; that such indebtedness should be paid out of the firm property; that a sale of such property should be made for such purpose; and that a receiver should be appointed for such firm. On September 19, 1888, said bank recovered a judgment in said cause against George W., Martin C., and William P. Bollenbacher for $3,616.06, and also recovered judgment against George W. Bollenbacher for the sum of $10,848.28, and an order, judgment, and decree foreclosing said mortgage on said real estate, and ordering the same sold to pay and satisfy said judgments, and at the same time the Monroe circuit court appointed Charles H. McPheeters as receiver of said firm of Bollenbacher & Sons, and authorized him to take charge and control of all the partnership property, real and personal, convert the same into cash, and apply the proceeds first to the payment of the judgment of said bank against the said William P., Martin C., and George W. Bollenbacher, and then to the payment of the judgment against said George W.; that pursuant to his said pretended appointment, such receiver, on the 16th day of May, 1901, sold the real estate above described to Sarah E. Suggs for the sum of $705 and executed to her a pretended deed of conveyance therefor; that by virtue of said purchase and conveyance, and without any other authority whatever, the said Sarah E. Suggs went into possession of said real estate; that her only claim of title to said real estate and her only right to possession thereof rests upon said judicial proceedings and sale as above set forth; that said Sarah E. Suggs died since said sale and prior to the bringing of this suit, leaving as her only heirs at law the appellees herein, other than said George W. Bollenbacher; that said George Bollenbacher, deceased, had and held prior to his death a one-third interest in said real estate as a member of the firm of Bollenbacher & Sons; that no administration was ever had upon his estate; that no administrator or executor of said estate was ever made a party to said foreclosure proceedings; that no settlement of the firm's business was ever made or attempted to be made by either of the surviving partners in said firm, and at no time were these plaintiffs ousted of their title to said real estate by said pretended sale; that said proceedings from beginning to end are null and void.

Appellants, in effect, concede that said additional averments show that the appellees are in possession of the real estate involved under a conveyance made pursuant to the judgment rendered in such foreclosure proceedings, and that their complaint is a collateral attack on such judgment, and hence was properly held insufficient unless such judgment is absolutely void; and insist that, because no executrix, executor, or administrator with the will annexed of the estate of George Bollenbacher, deceased, was made a party to such foreclosure proceeding, as provided by section 2847, Burns 1908, “the jurisdictional right of foreclosure” was absent in such proceeding; and hence that any judgment rendered therein was absolutely void.

As supporting their contention, appellants rely on the following cases: Lovering v. King, 97 Ind. 130;Noerr v. Smith, 151 Ind. 584, 51 N. E. 332;Union Trust Co. v. Scott, 170 Ind. 666, 85 N. E. 481;Home Nat. Bank v. People's State Bank, 49 Ind. App. 13, 96 N. E. 710; Henry's Probate Law, § 236.

That part of section 2847 here involved is as follows: “No proceeding shall be instituted before the end of one year from the death of the...