Young v. Wiley

• Decision Date: 31 December 1914
• Docket Number: No. 22736.,22736.
• Citation: 183 Ind. 449,107 N.E. 278
• Parties: YOUNG et al. v. WILEY.
• Court: Indiana Supreme Court

183 Ind. 449

107 N.E. 278

YOUNG et al.

v.WILEY.

No. 22736.

Supreme Court of Indiana.

Dec. 31, 1914.

Appeal from Circuit Court, Madison County; Chas. K. Bagot, Judge.

Action by Alvah G. Young and others against Elijah Wiley. A judgment for defendant was reversed by the Appellate Court (102 N. E. 54), and the cause was transferred under section 1394, Burns' Ann. St. 1914. Judgment of Appellate Court reversed, and that of trial court affirmed.Gavin, Gavin & Davis, of Indianapolis, and Smith, Cambern & Smith, and J. T. Arbuckle, all of Rushville, for appellant. Wallace Morgan, of Rushville, E. W. McDaniel, of Shelbyville, and Reuben Conner, of Connersville, for appellee.

MYERS, J.

This is an action brought November 1, 1905, by appellants, children of Sebastian Young, deceased, against appellee, to declare void a judgment affecting the title to real estate, and to recover its possession. The complaint is in five paragraphs, to each of which demurrers were sustained, and that ruling is the error here assigned.

The first paragraph alleges: That on and prior to October 23, 1888, one Lewis Young was the owner of a described 160-acre tract of land in Rush county, Ind., of which he died seised in fee simple, leaving a will by which it was provided as follows:

“I direct that my son Sebastian Young shall have the west eighty acres of my land with all the improvement thereon, and if he should die before his present wife does, then it shall go to his children.”

That the will was duly probated November 9, 1888, and was never contested, or set aside. That at the time the will was probated, Sebastian had two children living, appellants here. That prior to the execution of the will, Lewis Young had and entertained a violent dislike, prejudice, and hatred for the wife of Sebastian, and declared and gave out that he intended making his will in such way and manner that she should never receive any of his property. That after the death of Lewis Young, Sebastian, with his wife and said children, continued to reside on the real estate until January, 1892. That on December 19, 1888, said Sebastian instituted an action in the Rush circuit court against appellants for the alleged and pretended purpose of obtaining a construction of the will, and to quiet his title to the 80-acre tract, alleging the foregoing facts, and alleging further that it was the testator's intention and desire to devise the land, describing it, to him in fee simple, but that the language of the will is meaningless, and casts a cloud on his title, and prayer that the will be construed so as to devise the land to him in fee simple, and that the cloud be removed, and the title quieted in him, and for all other proper relief. That a summons was duly issued for appellants, but was never served on either of them. That on January 17, 1889, the cause was called for trial, and a guardian ad litem was by the court appointed for appellants, who filed an answer of general denial, and on the same day the court rendered judgment in favor of said Sebastian, quieting title to the real estate in him. That at that time Della Lawson was 18 and Alvah Young 7 years of age. That they were living with their father as members of his family, and under his complete control and dominion. That they had no experience in business, knew nothing of court proceedings, or the manner in which they were carried on, or what a summons to appear in court meant, and knew nothing of the terms of the will or of the rights thereunder, or of the pendency of the suit. That neither had any guardian, and they depended solely on their father to look after their interests. That when the cause was called their father selected a member of the Rush county bar as guardian ad litem for them, and the court made the appointment. That the guardian had no knowledge of the nature of the action, or the effect on their interests, and accepted the appointment with the understanding and belief that his duties were formal, and accepted the appointment to accommodate the plaintiff. That the answer of the guardian ad litem was prepared by the attorneys for their father, and was filed by them. That the guardian ad litem gave no attention to the suit, and took no steps to protect their interests. That no evidence was offered or heard on the trial, and hearing was had and judgment entered quieting the title, in the absence of the guardian ad litem, and with no one present representing appellants' interests. That the complaint in that action did not state facts sufficientto constitute a cause of action against them, nor authorize the court to quiet title in Sebastian Young, and because no objection was made thereto, nor any defense interposed on account of their minority, and no evidence was given. That the title of said Sebastian was determinable fee, and upon his death before the death of his wife the fee simple vested in them. That the judgment was rendered outside the issues and without jurisdiction over them. That it was fraudulently procured by said Sebastian, and the court was deceived and misled, and was fraudulently and wrongfully procured to enter the judgment, and that it is void. That said Sebastian fraudulently and wrongfully procured the judgment for the purpose of fraudulently and wrongfully depriving plaintiffs of their interest in the real estate. That on December 24, 1889, said Sebastian, his wife joining him, executed a mortgage on the real estate, to secure an indebtedness of $1,600. That a foreclosure proceeding was instituted, and resulted in a judgment of foreclosure and sale, at which the real estate was bid in by one Crane, and on May 1, 1894, a deed was executed to Crane, who in June, 1894, conveyed to appellee, who has since been in possession, claiming to own the land. That said Sebastian died August 3, 1905, leaving surviving a widow, who was his wife at the time the will was made. That they did not know of the suit instituted by their father until after his death, and until a short time before bringing this suit. That they have demanded possession, which was denied, appellee claiming to be the exclusive owner. Prayer that the pretended judgment quieting title in their father be set aside, and declared void, and their title quieted; and damages for being kept out of possession in a named sum, and for all other proper relief.

The second paragraph of complaint is substantially the same as the first, except that reference to any dislike of the wife of Sebastian is omitted, and it is alleged that Lewis Young had but one son, Sebastian, living at the time the will was executed, and no reference is made to any lack of service of summons on appellants, and that the plaintiff in that action, through his attorneys, wholly and completely controlled the management, and represented both sides of the case, and procured the guardian ad litem to be appointed as a matter of form, and procured a judgment to be taken in his absence fraudulently, and wrongfully, for the purpose of deceiving and misleading the court. It is then alleged that Crane, the purchaser at the sheriff's sale, at the time of and before his purchase, had knowledge of the minority of appellants, and of their interest in the real estate, but is silent as to any notice to appellee or knowledge of the other allegations of the paragraph.

The third paragraph is similar to the first, except that it is alleged that Sebastian Young, through his attorneys, controlled and represented both sides of the cause, and deceived and misled the court wrongfully and fraudulently, for the purpose of defrauding appellants; that Crane purchased the land on foreclosure for $1,900, and sold it to appellee for $2,100, and that it was then worth $5,000, and at the death of Sebastian Young was of the value of $8,000; that both Crane and appellee at the time of their respective purchases had knowledge of the minority of appellants, and of their interest in the land, but it is not alleged that either of them had any knowledge of the other facts alleged in the paragraph.

The fourth paragraph is similar to the second, except that it alleges that the mortgage was made to Crane, and that Crane and Sebastian Young, at the time of the execution of the mortgage and the purchase at sheriff's sale, and appellee, had, at the time of the purchase, knowledge of the minority of appellants, and of their interest in the real estate, and of all the facts alleged as to the manner and means by which the judgment was obtained and that it was obtained by fraud as alleged herein.

The fifth paragraph is similar to the first and third, except that it is alleged that Sebastian Young controlled both sides of the case, and that the judgment was rendered without sufficient complaint, was without the issues and without jurisdiction of the person of appellants, and procured by deceiving and misleading the court, wrongfully and fraudulently. It is also alleged in this paragraph that the land was worth $5,000 at the time of the purchase by Crane, and $8,000 at the time of the purchase by appellee, and that the latter, and Crane and Young, at the time of the purchases, each had full knowledge of the minority of appellants, and of their interest in the real estate, and of all the facts herein alleged, as to the manner and means by which the judgment was procured, and that it was obtained by the fraud herein alleged.

[1][2][3] It is unnecessary to determine what the interest of Sebastian Young was. The question was submitted to a court of general jurisdiction, which was called on to determine, by the construction of the will, what that interest was, and did determine it. Whether rightly or wrongly is immaterial at this time, provided it obtained jurisdiction of the parties in interest, or now claiming an interest, to wit, appellants, unless the record shows there was no notice, or that judgment was procured by fraud by which the court was misled, and appellee had notice of, or is chargeable...