Wolcott v. Wigton
| Decision Date | 27 November 1855 |
| Citation | 7 Ind. 36 |
| Parties | Wolcott v. Wigton and Others |
| Court | Indiana Supreme Court |
From the La Grange Court of Common Pleas.
The decree is affirmed with costs.
J. M Flagg, for appellant.
J. B Howe, for appellees.
Wigton and others filed their petition for the partition of certain lands, making George Wolcott defendant. It is alleged that Mrs. Wigton, the mother of the petitioners, died seized in fee of the lands therein described; that they, as her heirs at law, (except John Wigton,) were at the time of filing the petition, seized, &c.; that at a sale on execution against John Wigton, the defendant, Wolcott, purchased the whole of the land described, but the petitioners aver and insist that Wolcott thereby acquired only the title of John Wigton, viz., one-seventh part inherited by him as heir aforesaid; that of the remainder thereof, viz., six-sevenths, the petitioners are seized in fee as tenants in common.
The petitioners disclaim any other source of title; and state that prior to the sale on execution, John Wigton procured from the person who had a tax-title for a part, &c., a quitclaim deed; that these are Wolcott's sources of title.
The petitioners charge that the sale for taxes, tax deed, &c., are irregular and void, and conveyed no title, and that Wolcott is only entitled to one-seventh part of the land described.
Wolcott's answer denies the allegations in the petition, so far as relates to the title of the petitioners, and avers that prior to the sale on execution, John Wigton was seized of the whole; that the title derived by tax sale was of all the land; and that Wolcott's purchase on execution embraced it all, and not one-seventh as alleged.
Trial by the Court, and judgment of partition in accordance with the prayer of the petitioners. Wolcott appeals.
There is no evidence in the record, and no bill of exceptions to any ruling of the Court. The appeal immediately follows the judgment, without the intervention of any motion on the part of the defendant.
Two errors are assigned--
1. That the Court erred in entertaining jurisdiction.
2. That the Court erred in decreeing a partition.
In the state of the pleadings and record, the second error can not be noticed. It presents nothing for adjudication.
The only question in the case is the jurisdiction. The question arises on the construction of the provisions of the Circuit Court and Common Pleas acts. The 5th section of chapter 8, among other things, confers upon the Circuit and Common Pleas Courts concurrent jurisdiction in the partition of real estate. 2 R. S., p. 17. The 8th section, defining and limiting the jurisdiction of the Common Pleas, excepts from the powers conferred to try civil causes, slander, libel, &c., and where the title to real estate shall be in issue. 2 R. S., p. 18. The 5th section of chapter 4 confers upon the Circuit Court exclusive jurisdiction where the title to real estate shall be in issue. 2 R. S., p. 6.
There is great force in the suggestion of counsel for Wigton, that the settling of the title is only incidental to the final decree. The position is this: that in cases where the title to real estate was the sole or principal thing sought to be determined, as in the old action of ejectment, there the title to real estate would be in issue, within the meaning of the statute; but that where it was not the chief purpose of the action, and the question of title arose only incidentally, as in partition, the jurisdiction would not be ousted.
The intention to confer jurisdiction in cases of partition, is as clearly expressed as language can well make it. In the petition, it is required that the rights and titles of the parties interested shall be set forth. 2 R. S. 329. Taking these two provisions together, it is very clear that the mere averment of title in the petition, and consequently the denial of it in the answer, can not be taken to divest the jurisdiction. For as every petition must aver the titles of the parties interested, if known, then it would follow, that in every such petition the title would appear to be in controversy; and upon a strict construction, such as was heretofore adopted by this Court in relation to the jurisdiction of a justice when the title to real estate was involved, every petition for partition would per se oust the jurisdiction of the Common Pleas.
Thus in Parker v. Bussell, 3 Blackf. 411, a similar restrictive clause in the revised code of 1831, received construction. And it was held that whenever, in a suit before a justice, it appears from the pleadings, evidence or agreement of the parties, that the title to real estate will come in question, the jurisdiction is ousted. So when that question was not disclosed till it appeared in the evidence on the trial in the Circuit Court upon appeal, it was held that the suit should be dismissed for want of jurisdiction in the justice. Smith v. Harris, 3 Blackf. 416. But in Maxam v. Wood, which was trespass for taking timber from Wood's land, and the general issue filed, it was held that this state of pleading did not put Wood's title in issue. 4 Blackf. 297. In Rogers v. Perdue, 7 Blackf. 302, the facts are very similar to those in Parker v. Bussell, supra. Thus, to a suit on a promissory note commenced before a justice of the peace, it was pleaded that the note was given in consideration of the conveyance of certain land; that the payee had no title to the land, &c. ...
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