Wilmore v. Stetler

• Decision Date: 18 May 1893
• Docket Number: 16,034
• Parties: Wilmore et al. v. Stetler
• Court: Indiana Supreme Court

34 N.E. 357

137 Ind. 127

Wilmore et al. v. Stetler

No. 16,034

Supreme Court of Indiana

May 18, 1893

Reported at: 137 Ind. 127 at 135.

From the Adams Circuit Court.

Judgment affirmed.

J. W Ryan, W. A. Thompson, A. O. Marsh, J. W. Thompson, J. T France and J. T. Merryman, for appellants.

J. Morris, R. C. Bell, J. M. Barrett and S. M. Morris, for appellee.

OPINION

Olds, J.

The appellants brought this action in the court below, averring in their complaint, that one Addison G. Wilmore died testate, at the county of Adams, seized of certain real estate; that he left surviving him, as his heirs at law, his widow, Elanor, appellants, and Ellen, who died in 1871, his children.

A copy of the will is set out, and it is charged that the widow took under the law, and not under the will; that in 1868, after the death of her husband, Elanor was declared of unsound mind, and a guardian was appointed for her; that the guardian applied to the Randolph Common Pleas Court for an order to sell the real estate of which Wilmore died seized; that the court ordered the guardian to sell the interest of his ward in the lands he had described in his petition; that said Eleanor had no interest in the real estate except the one-third interest inherited from her husband; that the appellants had never transferred or conveyed the interest in this real estate, which had descended from their father and sister Ellen; that the guardian of Eleanor pretended to sell the entire fee of the real estate; that one Lewis Edwards purchased the real estate at guardian's sale; that at the time he purchased, he had notice and knowledge that appellants, and the sister since dead, had and held an interest in said real estate, as the heirs at law of Addison G. Wilmore; that Lewis Edwards afterwards conveyed a part of this real estate to appellee, who holds possession of said part and claims the entire fee therein, and denies appellants' right and title to said real estate, or any part thereof; that the claim of appellee is a cloud upon the appellants' interest in, and title to, said real estate.

The relief asked was for partition, to quiet title, and possession of their interest in the land.

A demurrer was filed to the complaint, which was overruled, and the appellee answered in six paragraphs.

The appellants demurred to paragraphs of answer, and the court overruled the demurrer to the second, fourth, and fifth paragraphs of answer, to which ruling the appellants excepted.

The fourth paragraph pleads the fifteen years' statute of limitation, and the fifth paragraph pleads the twenty years' statute. They are general pleas of the statutes, alleging that the cause of action did not accrue within the fifteen and twenty years, without alleging adverse possession. It is contended by appellants that the complaint is for partition between tenants in common, and that the answers are not good, while the appellee contends that the action is not for partition but for possession and to quiet title, and even if held to be in partition the paragraphs of answer are good.

There was a special verdict returned finding the facts, and owing to the view we take of the case it matters not whether there was error in ruling on the demurrers to these paragraphs of answer or not, for if error it was harmless. We have recently considered and passed upon the question as to the sufficiency of answers of this character in actions for partition, in case of Peden v. Cavins, 134 Ind. 494, 34 N.E. 7. See also Patterson v. Nixon, 79 Ind. 251 (256); Nutter v. Hawkins, 93 Ind. 260; Wood Limitations of Actions, section 266, p. 559.

The next question discussed by counsel relates to the sufficiency of the second paragraph of answer.

The complaint sets out a copy of the will; alleges the death of the testator; the survivorship of the widow and children; the insanity of the widow; the appointment of Adamson as her guardian; the petition to sell the real estate, including that in controversy. The petition to sell, which is sworn to, alleges that Mrs. Wilmore owned the land in fee simple. The answer admitted the foregoing facts. It averred that the court ordered the whole of said real estate to be sold by the guardian; that the guardian did, pursuant to the order of the court, cause the fee simple of said land to be sold for $ 3,500, being $ 400 more than its appraised and actual value in fee simple, to Lewis Edwards; that the sale was reported to, and approved and confirmed by, said court; that one-third of the purchase-money was paid in hand and the balance properly secured and afterwards paid and the land conveyed to said Edwards; that some five hundred dollars of interest accrued on the purchase was applied to the support of the appellants and their insane mother, in accordance with the terms of the will of Addison P. Wilmore; that the said Adamson ceased to be guardian of said insane widow; that one Bodkins, the uncle of Mrs. Wilmore, was appointed the successor of said Adamson in said trust, to whom Adamson paid the money by him received as the purchase-money of said land, being $ 4,146 and more; that after the appellants became of full age, and after the death of Mrs. Wilmore, the said Bodkins settled with them and paid to each over $ 1,000, being the purchase-money of said land received by him from said Adamson; that said appellants accepted said money so paid them by said Bodkins, knowing it to be the proceeds of the sale of said real estate, and knowing at the same time what their interest in said real estate was, and that the money received and accepted by them was the proceeds of the sale of their interest therein, and their full shares thereof.

This paragraph of answer is based on the theory that the appellants, by accepting the money, ratified the sale and estopped them from attacking its validity, and while retaining the money recover the land, and thus receive and retain both the money and the land, and this paragraph of answer presents the controlling question in the case; for if by the acceptance of the money the appellants, who are the heirs, ratified the sale and estopped themselves from recovering the land while retaining the proceeds derived from the sale, it puts an end to the case, and the many other questions so ably discussed by counsel are immaterial. If the appellants ratified the sale and estopped themselves from recovering the lands, by accepting the money, such ratification and estoppel took place at the time of accepting the money, and it is immaterial how many years had elapsed afterwards and between that time and the commencement of this suit. Nor is it material as to what construction should be placed upon the will. That this answer is good we think there can be but little doubt.

The petition of the guardian of Mrs. Wilmore to sell the real estate in controversy was sworn to, and alleged that she owned the whole of the land. The court ordered the whole of the real estate to be sold. It was duly appraised and sold for more than the full appraised value, and the sale was approved and confirmed by the court. The money was retained by the guardian, and loaned, and the accumulated interest added to it, only expending a small amount for the support of Mrs. Wilmore, and after her death the guardian...