Page images
PDF
EPUB

Unfried v. Heberer et ux.

the said Anna Maria intermarried with her co-plaintiff, Peter Heberer, who had ever since been her lawful husband, and that ever since the death of the said Roth she had been the owner of one-third of said real estate by virtue of her marriage with said Roth, and not otherwise.

The defendant demurred to the second paragraph of the reply, but his demurrer was overruled.

The plaintiffs thereupon withdrew the second paragraph of their complaint and the first paragraph of their reply, and the defendant standing on his demurrer to the second paragraph of the reply, judgment for the partition of said real estate was rendered, directing, amongst other things, that one-third in value of said real estate be set off to the said Anna Maria; and, the commissioners reporting that such real estate was not susceptible of partition without injury, an order for the sale of the same was made, and for a division of the proceeds, according to the respective rights of the parties as established by the judgment of partition.

The first question to which our attention is invited is that of the sufficiency of the first paragraph of the defendant's answer; and, in passing upon that question, we have only to decide whether the plaintiff Anna Maria was estopped by the judgment of foreclosure, to which she was a defendant, from setting up her claim, as widow of Andreas Roth, to the land in controversy.

In the complaint in the foreclosure proceeding, it was not alleged that she had joined in the execution of the mortgage, nor that the mortgage was given to secure the purchase-money of the mortgaged lands, nor was any other fact stated tending to negative her claim to such lands as widow of the deceased mortgagor. It was not even averred or shown in that complaint, that she was the widow of such mortgagor. The natural inference, from the allegation that she was one of the heirs of the mortgagor, in the connection in which it was made, would be, that she had

Unfried v. Heberer et ux.

some inheritable interest in the mortgaged lands, which might or would be affected by the foreclosure of the mortgage, and not that any right she had as widow was attacked. A widow is an heir of her deceased husband only in a special and limited sense, and not in the general sense in which that term is usually used and understood. When the said Anna made default in the action for foreclosure, nothing was taken against her as confessed, nor could have been, which was not alleged in the complaint; and, as nothing was alleged hostile to her claim as widow, it follows that nothing concerning her claim as such widow was concluded against her by the judgment of foreclosure. This proposition we regard as too well founded in principle to need the citation of authorities to sustain it. See, however, Helms v. Love, 41 Ind. 210; Fletcher v. Holmes, 25 Ind. 458; Minor v. Walter, 17 Mass. 237.

A judgment by default is conclusive of all that is properly alleged in the complaint, but nothing more; and, as a general rule, only upon the defendant in the character in which he is sued. Bigelow Estoppel, 65; Herman Estoppel, 191; Cronan v. Frizell, 42 Ill. 319; Mansfield v. Hoagland, 46 Ill. 359.

We are, therefore, of the opinion, that the court did not err in sustaining the demurrer to the first paragraph of the

answer.

There is a question between counsel as to whether the plaintiffs' demurrer to the second and third paragraphs of the answer was overruled or not, owing to some obscurity in the record; but, as the defendants demurrer to the second paragraph of the reply necessarily raised the question of the sufficiency of those paragraphs, we will assume that the demurrer to them was overruled. Batty v. Fout, 54 Ind. 482; Buskirk's Practice, 179; Wiley v. Howard, 15 Ind. 169.

This court has recently decided that a married woman.

Suits v. Murdock et al.

can not divest her title to real estate by an estoppel in pais. Behler v. Weyburn, 59 Ind. 143.

This rule, we think, if possible, applies with greater force to a married woman, under the coverture of a second marriage, as regards lands descended to her as the widow of her first husband, which she is incompetent to convey, even with the concurrence of her second husband. Knight v. Mc Donald, 37 Ind. 463; Vinnedge v. Shaffer, 35 Ind. 341; 1 R. S. 1876, p. 411, sec. 18; Schlemmer v. Rossler, 59 Ind. 326.

We are, therefore, constrained to hold, that both the second and third paragraphs of the answer were bad on demurrer.

This conclusion renders it unnecessary that we shall consider the sufficiency of the second paragraph of the reply, as it is a well settled rule of practice, that a bad reply is good enough for a bad answer.

We see no error in the record.

The judgment is affirmed, at the costs of the appellant.

SUITS v. MURDOCK ET AL.

TRESPASS.-Defence.-Pleading.—Supervisor.-Township Trustee.-Opening Highway Through Enclosed Lands.-Notice to Owner to Move Fence.Where, in an action by the owner of land for damages for unlawfully entering upon his premises and throwing down his fences, the defendants justify by alleging that the acts complained of were committed by them as township trustee, supervisor and laborers, in opening a highway duly located by order of the proper board of commissioners, it is necessary to allege also, that the notice required by section 41 of the highway act, 1 R. S. 1876, p. 534, has been given.

SAME. County Commissioners.-Order Locating Highway.-Viewers.—Reviewers.-Judgment Unappealed From.-Jurisdiction.- Waiver.-Description of Route.- Record of Highway.-Damages.-Remonstrance.-Tender.—

Suits v. Murdock et al.

From the record of the county commissioners, attached to the answer, it appeared, that, upon a legal petition for the location of the highway in question, viewers were appointed, who reported to the proper board of commissioners, that they had "carefully viewed the said proposed route,

and 帶 believe the location will be of public utility, and thirty feet wide," describing the route particularly; that such report was received and confirmed by the board; that, upon remonstrance, reviewers were appointed, who reported to such board, that they had found that the high'way proposed would "be of utility" and had laid it out thirty feet wide," describing the route as described by the viewers, and allowing a certain sum to the remonstrant as damages to be paid by the original petitioners, or persons benefited," etc.; that thereupon the board had made an order, that, "whenever the original petitioners shall pay to" the remonstrant the said damages, "then the said highway shall be located and established on said route, thirty feet in width, and that the said road shall be opened accordingly," etc., and that the proper trustee be notified thereof; and that such notice had been given, such damages tendered, and the tender kept good.

Held, that the board had jurisdiction, and, no appeal having been taken from their order, its effect could only be avoided by showing it to be void. Held, also, that, by failing to appeal, any question as to the order for payment of the damages assessed was waived.

Held, also, that an objection that the highway should have been ordered to be taken equally from adjoining proprietors is of no force, it not appearing that the route was upon a line between adjoining proprietors.

Held, also, that the viewers only, and not the reviewers, have authority to lay out and mark a highway.

Held, also, that a board of commissioners has no power to lay out and mark a highway.

Held, also, that, where the report of viewers specifies the route of the highway to be on a straight line between permanent specified points, such an order as was made in this case is sufficient.

Held, also, that the record of the highway laid out by the viewers could not be made by the board until after the report of the reviewers.

From the Tippecanoe Superior Court.

J. M. LaRue and F. B. Everett, for appellant.

J. D. Gougar, W. D. Wallace and A. Rice, for appellees. PERKINS, J.-Suit by the appellant, against the appellees, to recover damages occasioned by a trespass of the latter upon the lands of the former.

The complaint alleges, that, on the 25th day of December, 1875, the plaintiff was the owner, and in the peaceable

Suits v. Murdock et al.

possession, of a certain piece of land, describing it; that, on the day aforesaid, the defendants, without license, etc., entered upon said land, and threw down his fences, etc., to his damage, etc.

The defendants answered, that a highway had been laid out through said land, and ordered to be opened, and that the defendants were, one of them the township trustee of the township in which said road was laid out, one of them the road supervisor of the road district, etc., the others were inhabitants of said road district, and were acting in obedience to said supervisor, and that they all entered upon said land, and removed said fences, in the execution of the order of the board of commissioners of said county for the opening of said highway.

A transcript of the proceedings and judgment in the commissioners' court was filed as an exhibit with the

answer.

A demurrer to the answer was overruled, and exception entered.

Reply, to which a demurrer was sustained, and final judg ment rendered in favor of the defendants.

The record shows that a legal petition for the highway was presented to the board of commissioners of Tippecanoe county; that the viewers were appointed, who reported in favor of the highway. The report described the route of the highway, as described in the petition for it, and concluded as follows:

"And the said viewers say, upon their oath, that they have carefully viewed the said proposed route for road, and report to your honorable body that they believe the location will be of public utility, and thirty feet wide." The report was received and confirmed by the commissioners, and the viewers discharged.

A remonstrance was filed, and reviewers appointed, who also reported favorably. We copy their report, and the order of the board thereon:

« PreviousContinue »