Wagner v. Carskadon , 28 Ind. App. 573 ( 1901 )

Wiley, J.

Appellant becamethe wife of Peter Wagner November 22, 1855. At that time Peter Wagner was owner, with' others, as tenants in common, of certain real estate in Marion county, Indiana.' May 16, 1856, Peter Wagner and others brought their action in the common pleas court, in said county, against one George Wagner for partition of the real estate of which they were tenants in common. In said partition proceeding it was determined by the court that said real estate was not susceptible of being partitioned, and the court entered a decree directing that it be sold. It was duly appraised, a commissioner appointed to make the sale, and it was advertised and sold in conformity with the order of the court to one William Smith. The commissioner reported to the court the sale, which was approved, and a deed was executed to the purchaser, approved by the court, and was duly recorded. The fund derived from the sale was paid over to the parties in interest according to their respective shares. It was found that said Peter Wagner was the owner and seized in fee simple of the undivided one-twentieth part of said real estate. One William Hannamon, by and through several mesne conveyances, became the owner of the tract of land so sold in said partition proceedings. Said Hannamon made and platted said tract into lots, which said plat is known as “William Hannamon’s south addition to the city of Indianapolis,” which said plat was duly recorded. Said plat consisted of forty-five lots, numbered from one to 'forty-five respectively. By and through mesne conveyances, appellees became the owners of lot fifteen, in said addition, which lot is the same described in appellant’s complaint. That, after appellant’s marriage to said Peter, they lived together as husband and wife until Hay 11, 1887, when he died; that said Peter left an estate of less than $5,000 in value. In said partition proceeding, appellant was not in any manner made a party, and she did not know of said partition proceeding until after said Peter’s death. In her petition for partition appellant avers that she is the owner in fee simple of the undivided one-third of one-twentieth of said lot number fifteen, and asks that she have partition and that she have her title quieted, etc. These facts are averred in the complaint. The case was put at issue by an answer in denial, tried by the court, and upon proper request the court made a special finding of facts and stated its conclusions of law thereon. As a conclusion of law, the court stated that appellant was not entitled to have partition. The exception to the conclusion of law presents the only question for decision.

This is a companion case to that of Haggerty v. Wagner, 148 Ind. 625, 39 L. R. A. 384. The appellee there is the same person as the appellant here. The two cases are bottomed upon the same chain of facts. Tersely and plainly stated, the question before us for decision is this: If a wife is not made a party to a proceeding in partition of real estate in which her husband had an interest, and she survives him,, and such interest of the husband is devested by judicial sale in such proceedings, does she retain any interest or title-therein?

This inquiry has been answered in the negative by the Supreme Court in the case of Haggerty v. Wagner, supra. True, the decision in that case was by a divided court, but it settled the law adversely to appellant upon the identical facts here presented, and upon the authority of that case,, the judgment is affirmed.