Williams v. Wood

• Decision Date: 12 February 1915
• Docket Number: No. 8185.,8185.
• Citation: 107 N.E. 683,60 Ind.App. 69
• Parties: WILLIAMS v. WOOD et al.
• Court: Indiana Appellate Court

60 Ind.App. 69

107 N.E. 683

WILLIAMS

v.WOOD et al.

No. 8185.

Appellate Court of Indiana, Division No. 2.

Feb. 12, 1915.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Henry Williams against Edward F. Wood and another, with cross-complaint by defendants. Judgment for defendants, and plaintiff appeals. Affirmed.G. E. Ross, of Logansport, for appellant. Cox & Andrews, of Peru, for appellees.

CALDWELL, J.

Appellant's complaint is in three paragraphs. In each paragraph he alleges that he is the owner of the one-third part of a certain 60-acre tract of land in Miami county, and that appellees, Edward F. and Sarah (or Sallie) Wood, and William P. and Mary E. Rarey, claim to own the remaining two-thirds. By the first paragraph, he seeks to recover one-third of the rents and profits of said lands from 1894; by the second paragraph, he seeks to quiet his title to said one-third; and, by the third paragraph, he prays partition. Before judgment the cause was dismissed as to Rarey and Rarey, leaving as defendants appellees Wood and Wood. Demurrers to appellee's cross-complaint, and third, fourth, and fifth paragraphs of answer were overruled, and sustained to the first and second paragraphs. Appellant elected to abide said adverse ruling, and, failing to plead further, judgment was rendered that he take nothing by his complaint, and quieting appellees' title to the whole of said land, as prayed in the cross-complaint.

Error is assigned on the overruling of said demurrers. Said third paragraph of answer and said cross-complaint, each of which is lengthy, are practically identical in averments. In each of them the facts are set out by virtue of which appellant claims to be the owner of said one-third, and by which appellees claim to be the owner of the whole of said lands. The essential features of said paragraph of answer and said cross-complaint are as follows: That in March, 1893, Eliza Jane Williams died intestate, owning in fee said tract of land, and leaving surviving her, as her only heirs at law, the appellant, her husband, and Leslie Williams and certain other children. There are set out in detail the proceedings by which said lands were sold at an administrator's sale, for the purpose of paying the debts of the estate of said Eliza Jane Williams; said Rarey and Rarey being the purchasers for the sum of $1,850. The petition, order, and report of sale and administrator's deed described said lands as a whole, rather than the undivided two-thirds of any other part thereof. The administrator's petition for an order to sell said lands alleged that said Eliza Jane Williams died intestate; that appellant, as her husband, and said children, survived her; that she owned said land in fee simple; and that she left no personal estate. The existence of debts against said estate is alleged as follows:

“The claims against said estate are: Amount due Shirk estate, $1,160; amount due ditch lien, $372; funeral expenses and expenses of last sickness, about $100; taxes due, about $25.”

There is no allegation in said petition on the subject of whether any part of said lands descended to appellant on the death of his wife, or whether he owned any interest therein, except the averment that appellant survived said Eliza Jane Williams, as her husband, and there is no specific allegations showing either the right or the necessity of selling any such interest owned by appellant. The prayer of the petition is for an order to sell said lands, alleged to be of the value of $2,500. Appellant and said children were made parties to said proceeding, and were properly served with notice. Appellant, having made no appearance, was defaulted. By proceedings regular in form, the court entered an order directing the sale of said land specifically described as a whole.

As indicated, it further appears from said paragraph of answer and said cross-complaint that the notice of sale was to the effect that said lands, described as a whole, would, at a named day, be offered for sale; that the report of sale was to the effect that said lands, described as a whole, had been sold to said Rarey and Rarey; and that the administrator's deed was to the effect that the administrator by order of court did thereby convey said lands, described as a whole, to said purchasers. It is further alleged in each of said pleadings that the entire sum realized from the sale of said land was applied in discharge of the debts of the said estate; that included in said debts so paid were two items secured by mortgage on the lands sold; that the first of said mortgages was executed by said decedent and appellant on the 3d day of November, 1891, to secure debts in the original sum of $1,400, executed by said decedent to Milton Shirk, executor, for an unpaid balance of the purchase price of said land; that the second of said mortgages was executed by appellant and said decedent to said executor on the 10th day of October, 1892, to secure a promissory note executed by said decedent for $350; that in all $1,591.44 of said selling price was applied in paying the balance due on said mortgage indebtedness,...