Hutchinson r. Lemcke et al.

Whatever might have been said originally, after that adjudication and decree, the Carpenters did not hold the property, or any part thereof, for sale as trustees for appellant, because, First, by that adjudication it was determined and settled that appellant was not the owner of the whole, nor any portion of the half-lot; Second. The court, as we have seen, took the property into its custody, decreed that the Carpenters had nothing but a mortgage, and that the administrator should sell the property and pay off the mortgage; Third. The administrator sold the half-lot in obedience to the orders of the court, and, the presumption is, paid off the Carpenter mortgage. There was no reason, therefore, why Willard Carpenter might not purchase the half-lot from the administrator. When we hold that the probate court had authority to settle the question of title, and order the sale of the half-lot, and that Willard Carpenter might purchase it, we have disposed of the case.

Aside from the questions of the power of the probate court to order the sale, and the right of Carpenter to purchase, appellant makes no question as to the regularity of the probate proceedings which resulted in the sale, except a question that the administrator's deed was prematurely made. The record does not affirmatively show that fact, and if it did it would make no difference, as appellant commenced no action to recover the half-lot within five years from the time the sale by the administrator was confirmed by the court. Vancleave v. Milliken, 13 Ind. 105; Vail v. Halton, 14 Ind. 344; Nave v. Tucker, 70 Ind.15; White v. Clawson, 79 Ind. 188; Gray v. Stiver, 24 Ind. 174; Brenner v. Quick, 88 Ind. 546; Hatfield v. Jackson, 50 Ind. 507; Wright v. Wright, 97 Ind. 444.

The judgment of the court below in favor of appellees is right upon the evidence, aside from any question of the twenty years' statute of limitations.

It is not improper to note in passing, however, that from the time Carpenter received the deed from the administrator in 1844, until this action was commenced in 1881, he and

Hutchinson v. Lemcke et al.

his grantees have been in the exclusive, uninterrupted and unquestioned possession of the half-lot.

There is no available error in the refusal of instructions asked by appellant. In the first place, they were not signed by appellant, nor by her counsel, as the statute requires. R. S. 1881, section 533; Jeffersonville, etc., R. R. Cosv. Vancant, 40 Ind. 233; Terre Haute, etc., R. R. Co. v. Graham, 46 Ind. 239; Sutherland v. Hankins, 56 Ind. 343; State, ex rel., v. Sutton, 99 Ind. 300, and cases there cited. In the second place, some of them are based upon the theory that the orders and decree by the probate court, and the sale by the administrator, were nullities, and that notwithstanding that decree and the sale and the purchase by Willard Carpenter, he held and possessed the half-lot as appellant's trustee. They were, therefore, based upon an erroneous theory, and were properly refused. Others are based upon the theory that the orders and decree of the probate court, the sale by the administrator, and the purchase by Willard Carpenter were nullities so far as concerns the interest now claimed by appellant, and that hence, as to that interest, Carpenter and his grantees were tenants in common with appellant. Here again, the theory is a false one, and the instructions for that reason were properly refused.

It can make no difference whether Carpenter may have taken possession before or after the sale and deed by the administrator. Under the judgment and decree of the probate court, to which all interested persons were parties, he could no longer be regarded as in any sense a trustee. Under the conclusions we have felt constrained to adopt as to the force and effect of the proceedings by the probate court, the instructions given by the court upon the trial below were more favorable to appellant than they should have been. The giving of them, therefore, can not be urged by her as an available error.

It results from our holding that the judgment must be affirmed. It is, therefore, affirmed at appellant's costs.

Filed June 19, 1886.

Fosdyke, Assignee, v. Nixon.

No. 12,293.

FOSDYKE, ASSIGNEE, v. NIXON.

ASSIGNMENT FOR BENEFIT OF CREDITORS.-Pleading.-Sufficiency of Creditor's Claim. A claim against the estate of a debtor, who has made a voluntary assignment for the benefit of his creditors, is sufficient when it informs the assignee of the nature and amount of the creditor's demand. The strict rules of pleading will not be applied to such claims. SAME.-Purchase of Claims Against Debtor.-Enforcement Against Estate.-A good-faith purchaser of claims against an embarrassed debtor, who has made an assignment of his property for the benefit of his creditors, is entitled to the distributive shares of the original holders of the claims, and may enforce payment against the debtor's estate in the hands of the assignee.

From the Fountain Circuit Court.

T. F. Davidson, for appellant.

G. W. Paul, J. E. Humphries and J. B. Martin, for appellee.

Howк, C. J.-Appellee, John T. Nixon, claimed to be a creditor of one Marshall Nixon, an embarrassed debtor, who had made a general assignment of all his property in trust for the benefit of all his bona fide creditors, to the appellant, Fosdyke, under the provisions of our voluntary assignment law, in force since March 5th, 1859. Appellant refused to allow appellee's claim, when presented, and thereupon such claim was docketed in the court below as a cause for trial. An answer in six paragraphs was filed by appellant to appellee's claim or complaint, the first three paragraphs of which answer were subsequently withdrawn. Appellee's demurrers to each of the remaining paragraphs of answer were sustained by the court, and appellant refusing to amend or plead further, appellee had judgment for the amount due on his claim.

Appellant has here assigned, as errors, the sustaining of the demurrers to each of the fifth and sixth paragraphs of his answer, and that appellee's claim or complaint does not state facts sufficient to constitute a cause of action.

Fosdyke, Assignee, v. Nixon.

There was no demurrer below to the claim or complaint, but appellant's objections thereto are made for the first time. in this court. The claim consists of a judgment which appellee had recovered against Marshall Nixon, and of other judgments, notes and accounts against Marshall Nixon, all duly assigned to the appellee. A number of technical objections to the claim or complaint are pointed out by appellant's counsel, in argument, some of which might have been reached by motion to make the claim more certain and specific. The strict rules of pleading ought not, we think, to be held applicable to such a claim, and where, as in this case, the claim clearly informs the assignee or trustee of the nature and amount of the creditor's demand, it should be held sufficient, even on demurrer, and certainly so when its sufficiency is called in question, for the first time, by an assignment of error in this court.

The fifth paragraph of appellant's answer was addressed to so much only of appellee's claim or complaint as relates to the judgments, notes or accounts, and each of them, alleged to have been acquired by appellee by assignments from the original owners and holders thereof; and the appellant averred therein that such judgments, notes and accounts, and the assignments thereof, were procured to be made to appellee in the manner and for the consideration and purpose following, and in no other manner and for no other consideration whatever; that after the execution of the assignment by Marshall. Nixon to appellant, and after he had qualified as assignee and entered upon the discharge of the duties of his trust, and after he had become possessed of all the property assigned to him by Marshall Nixon, the latter became desirous of procuring a compromise, settlement and release of the debts and demands held against him by his creditors, and to that end and purpose he executed a power of attorney, appointing one Andrew P. Potts his attorney in fact to act for him, and in his name, in negotiating and perfecting a settlement between him and his creditors, and authorizing his at

Fosdyke, Assignee, v. Nixon.

torney to make such settlement with any creditor who would take twenty-five cents on the dollar of the amount due him, to be secured by acceptable promissory notes payable, as should be agreed on, in not less than six months nor more than eighteen months from their dates with interest, and that he would furnish the notes as required to enable his attorney in fact to complete such settlements as he might make, authorizing such attorney to take assignments of all claims he might succeed in adjusting, to John T. Nixon; that said Andrew P. Potts accepted the agency and employment conferred upon him by such power of attorney, and acting alone thereunder and pursuant thereto, he entered into negotiations with the creditors of said Marshall Nixon and effected a settlement and compromise with each of the original holders of the several claims alleged by appellee to have been assigned to him; that it was agreed between Potts, as such attorney in fact, and each of the original holders of such claims, that they would accept in full satisfaction thereof the promissory notes of appellee and one Henry P. Nixon for the several amounts to be paid them respectively, which notes were executed and furnished by appellee and Henry P. Nixon to said Potts, at the request of Marshall Nixon, and were made payable to the several holders of such claims, and were in such sums and payable at such times as agreed upon between said Potts and each of the several holders of such claims, and that such notes were delivered by said Potts to, and accepted by, the original holders of such several claims, in satisfaction and discharge thereof; that immediately after the acceptance of such settlement, and as part thereof, each of the original holders of such claims, as settlement with each was made, severally executed an instrument in writing, which appellant called a release, in the words and figures following, to wit:

"We, the undersigned creditors of Marshall Nixon, of Veedersburg, Fountain county, Indiana, hereby mutually agree to accept twenty-five cents on the dollar of the debts