sonal estate as heir or legatee, are not binding on the heirs or legatees, and may be set aside and corrected on the application of the appellant. It is no answer to say that Owens obtained this decision of the court on his partial account. He could not at that time, on constructive notice, procure any order that would bind the legatees or heirs as to the question of heirship or distribution. His being allowed a credit for $6,304.40, for notes turned over to Mary A. Porter, was not an adjudication of which she could avail herself. The allowance of that credit to him was no adjudication in her favor or against the legatees, who would take at her death; they were not in court. The administrator could not by any act of his in making such distribution, or procuring the approval of the report, deprive the legatees of their rights under the will, nor estop himself or his successor from having the same corrected. This disposes of the objections urged to the complaint. Judgment reversed, with instructions to the court below to overrule the motion to dismiss, and for further proceedings In accordance with the opinion.

HACKNEY, J., did not participate in this opinion.

(141 Ind. 672)

AXTON et al. v. CARTER et al.' (Supreme Court of Indiana. Jan. 30, 1895.) SALE BY ADMINISTRATOR TO HIMSELF-ACTION TO SET ASIDE-SUFFICIENCY OF COMPLAINT

-LIMITATIONS-ESTOPPEL

1. In an action by heirs to set aside a sale of land by the administrator to himself, through a third person, against others than such administrator, a complaint which, after reciting the sale, etc., simply alleges that such administrator has held possession of the land ever since, and that plaintiffs are entitled to have the sale declared void, states no cause of action against defendants.

2. An action by heirs of a decedent to set aside a sale of land by an administrator to himself through a third person is within Rev. St. 1894, § 294, cl. 4 (Rev. St. 1881, § 293, cl. 4), which provides that an action to recover land sold by an administrator on a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, or his heirs, is barred in five years after the sale is confirmed. Potter v. Smith, 36 Ind. 231, overruled. Fisher v. Bush, 32 N. E. 924, 133 Ind. 315, followed.

3. Where an action is governed by the fiveyears statute of limitations, it is not error to sustain a demurrer to an answer pleading the six-years statute.

4. Where heirs receive the surplus proceeds of land sold by an administrator to himself through a third person, with a knowledge of all the facts, they cannot maintain an action to set the sale aside.

Appeal from circuit court, Spencer county; Peter Maier, Special Judge.

Action by Harvey Carter and others against B. Napoleon Axton and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Rehearing denied.

Swan & Laird, for appellants. A. J. Payton, F. A. Henring, and F. E. Snyder, for appellees.

MONKS, J. The appellees brought this action against the appellants in the court below to set aside a sale of real estate, alleged to have been made by an administrator to himself, through a third party. It is averred in the complaint, which is one paragraph, that one John Carter died the owner of certain real estate, describing it, leaving the appellees as his heirs at law; that Robert J. Axton, now deceased, was duly appointed administrator of said estate, and procured an order of court, and sold said real estate to one William F. Ferguson for $170, which he paid in cash; that said sale was reported to and confirmed by the court, and said administrator, on the 13th day of November, 1878, executed a deed therefor to said Ferguson; that said administrator procured said Ferguson to buy said land for him, said administrator, to be held in trust for him, under an agreement that he would pay the purchase money therefor, and that said Ferguson would convey said real estate to him, or to any one else, whenever thereafter requested by said administrator; that said purchase money was paid by said administrator, and not by said Ferguson; that on the 19th day of April, 1881, said Ferguson conveyed said real estate to the said administrator; that said Axton has held possession of said real estate ever since pretended sale; that by reason of said pretended sale the appellees are entitled to have said sale declared null and void. To this complaint the appellants filed a demurrer, stating for ground of objection that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, to which the appellants reserved an exception. This was error. The complaint did not state any cause of action against the appellants, or give any reason for making them defendants to the action. Counsel for appellees urge that this error was cured, at the trial, by an agreement as to a part of the facts. The general rule is that this court cannot look into the evidence to determine whether or not a ruling on demurrer was harmless. Elliott, App. Proc. § 636.

The appellants filed an answer in five paragraphs. The first was a general denial. The appellees filed a demurrer to the second, third, fourth, and fifth paragraphs of answer, which was sustained, and exception. The second and fourth paragraphs of answer pleaded the 5-years statute, and the third the 6-years statute, of limitations. Counsel for appellees contend that these rulings were correct; that this case comes under the 15-year statute (Rev. St. 1881, § 294; Rev. St. 1894, § 295). It was held in Potter v. Smith, 36 Ind. 231,which was an action like the one now before the court, that the case was embraced by the 15-year statute (Rev. St. 1881, § 294; Rev. St. 1894, § 295). The attention of the court does

not seem to have been called in that case to the fourth clause of section 293, Rev. St. 1881 (section 294, Rev. St. 1894), which provides: "For the recovering of real property sold by an executor, administrator, guardian or commissioners of a court upon a judgment specifically directing the sale of property sought to be recovered brought by a party to the judgment, his heirs or any person claiming a title under a party, acquired after the date of the judgment within five years after the sale is confirmed." In Fisher v. Bush, 133 Ind. 315, 32 N. E. 924, which was an action like this, brought by heirs to set aside a sale made under an order of court by an administrator to himself through a third party, this court held that the case came within the fourth clause, supra. We are of the opinion that this is the correct rule. This is certainly an action brought by a party to the judgment to recover real estate sold by an administrator under an order of court specifically directing the sale, which brings it within the five-year statute. Fisher v. Bush, supra. The court erred in sustaining the demurrer to the second and fourth paragraphs of answer. This case being governed by the five-year statute, there was no error in sustaining the demurrer to the third paragraph of answer.

The fifth paragraph of answer is, in substance, that there was left of the proceeds of the sale of said real estate, after the payment of the debts, the sum of $71.85, and that in the year 1881 the appellees, and those under whom they claim, as the heirs of said John Carter, voluntarily received and collected said amount, and have retained the same to the present with a full knowledge of the facts, and thereby ratified and confirmed said sale. It is a well-established proposition that a sale of real estate made by an executor or administrator to himself through a third party is voidable at the election of the cestui que trust, but not void. Comegys v. Emerick, 134 Ind. 148, 33 N. E. 889; Carter v. Lee, 51 Ind. 292; Rice v. Cleghorn, 21 Ind. 89; Morgan v. Wattles, 69 Ind. 260; Shaw v. Swift, 1 Ind. 565; Murphy v. Teter, 56 Ind. 545; Dodge v. Stevens, 94 N. Y. 209; 1 Perry, Trusts, § 195, p. 246; 2 Perry, Trusts, § 602w; 1 Bigelow, Frauds, pp. 320, 322, 342, 343. It has been uniformly held that if one who has the right to avoid a sale of land receives the proceeds of the sale, or any part thereof, with a full knowledge of all the facts, he thereby confirms and ratifies the sale, and cannot afterwards avoid it. Wilmore v. Stetler (Ind. Sup.) 34 N. E. 357, 36 N. E. 856; Walling v. Burgess, 122 Ind. 299, 22 N. E. 419, and 23 N. E. 1076; Palmerton v. Hoop, 131 Ind. 29, 30 N. E. 874, and authorities cited; State v. Stanley, 14 Ind. 409; 2 Herm. Estop. §§ 1057, 1059, 1063, 1069. This rule applies to sales made by an administrator to himself through the intervention of a third party. Scott v. Freeland, 7 Smedes & M. 409; Jones v. Smith, 33 Miss. 215; Bruch v. Lantz, 2 Rawle, 417420; Beeson v. Beeson, 9 Barr, 299, 300; 2

Pom. Eq. Jur. §§ 964, 965, 1078; 1 White & T. Lead. Cas. Eq. 256-258; 1 Bigelow, Frauds, 320-322. Under these authorities, the fifth paragraph was sufficient, and the demurrer should have been overruled.

The other errors assigned need not be considered, as they may not arise on a retrial of the cause. Judgment reversed, with instructions to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion.

(140 Ind. 174)

MILLER V. MILLER. (Supreme Court of Indiana. Jan. 30, 1895.) ESTOPPEL IN PAIS ANd by Deed.

The owner of land, and his wife, conveyed it to his son, in consideration that the son would support them during life. The conveyance was afterwards declared void as to the father's creditors, and the land was sold under the decree to pay his debts. Before a deed was made the father died intestate. After it was made the grantees and the wife partitioned the land by agreement and conveyances, whereby one-third of it was conveyed to her. Held, that she was not estopped from claiming title and possession of such third, as against the son, who had performed and was ready to perform the conditions of such contract and the deed to him.

Appeal from circuit court, Pike county; D. J. Hefron, Judge.

Action by Asenath Miller against Justus T. Miller to quiet title. From a judgment for plaintiff, defendant appeals. Affirmed.

S. C. Embree, for appellant. Ely & Davenport, for appellee.

HACKNEY, J. On the 24th day of August, 1887, Justus Miller, father of the appellant and husband of the appellee, owned in fee simple a tract of land in Pike county, and on that day he conveyed said lands, his said wife joining in the deed of warranty therefor, to the appellant. On the 28th day of June, 1888, in a suit by one Cook against said Justus Miller and the appellant and the appellee, said conveyance was decreed fraudulent as against a judgment in favor of said Cook upon a liability of said Justus Miller. On the 27th day of June, 1891, said lands were sold upon decree for the satisfaction of said liability, and Ferguson, Richardson, Taylor, and Posey were the purchasers, and received a certificate of sale therefor. After said sale, and before the execution of a deed for said lands to said purchasers, the said Justus Miller died, intestate, leaving the appellee as his widow. After the execution of a sheriff's deed to said purchasers, and on the 7th day of July, 1892, the appellee and said purchasers made partition of said lands, by agreement and conveyances, by which one-third part in value of said lands was set off and conveyed to the appellee by description, the same constituting the lands in question in this case. The appellee demanded possession from the appellant of the tract so conveyed to her, which demand was refused, and

the title to said lands was claimed by the appellant. Thereupon the appellee sued to quiet title and for possession of said tract so conveyed to her, and in her complaint alleged the foregoing facts. To said complaint the appellant answered: That the appellee and her said husband, on said 24th day of August, 1887, executed to him the deed as alleged in the complaint, said deed containing the following condition: "This deed is upon the express condition that the grantee maintains and supports the grantors, during the natural lives of each and both, in manner suitable to their age and condition, and gives to each of them a decent burial at death, and erect at the grave of each tombstones of reasonable value, suitable to their age and condition." That, at the same time, said appellee and her said husband executed to said appellant an agreement stipulating that, by reason of ill health and age, they conveyed all their lands and personal property to the appellant, upon a consideration stated, substantially as in the conditions in said deed above quoted. And that appellant accepted said conveyance, agreeing to perform said conditions. And it is alleged the appellant went into possession of said lands, and ever since occupied the same, fully performing, and continuing in readiness to perform, all of the conditions of said deed and agreement. It was further alleged that the appellant had in no manner parted with the title so acquired by him, and he denied that the appellee had acquired any interest in or title to said lands. To this answer the circuit court sustained the appellee's demurrer, and that ruling is the only question presented by the argument upon the assignments of

error.

It is insisted, in support of the answer, that since the year 1881 married women have been bound by estoppels in pais and by their covenants of warranty as if sole. Rev. St. 1881, §§ 5115, 5117, 5118 (Rev. St. 1894, §§ 6960, 6962, 6963). The line of argument is that the appellee is estopped, as in pais, by the implied affirmance, by the deed, of a particular estate, namely, an inchoate interest in an undivided one-third in fee of the whole of the lands; and, further, that she is estopped by the expressed covenants of the deed. The first of these propositions is said to find support from Shumaker v. Johnson, 35 Ind. 33, where estoppels in pais, by deed, and by covenant are distinguished, and from Habig v. Dodge, 127 Ind. 31, 25 N. E. 182, and Jerauld v. Dodge, 127 Ind. 600, 25 N. E. 186. These cases, so far as they have any possible application to the present, hold that where the conveyance, though with covenants of warranty, does not purport to convey an indefeasible estate, but only the present interest of the grantor, the doctrine of estoppel does not apply to and pass an afteracquired title, even if no title passed by such conveyance.

As we have seen, the fee was in Justus

Miller. The conveyance, as to his wife, the appellee, did not purport to convey an indefeasible estate in the whole or any part of the land, and its legal effect was but to dispose of the interest then held by her. That interest was not a completed present interest, and was such only as would, by surviving her husband, ripen into a present interest. She had no right nor interest which could be conveyed apart from the title of her husband. An after-acquired title could not, therefore, be held to pass by the rule of estoppel in pais as applied in the cases cited. Snoddy v. Leavitt, 105 Ind. 357,

5 N. E. 13. To what extent the fraud which entered into and affected the conveyance to the appellant would preclude the assertion of an estoppel in pais we do not decide, but it is one of the rules, ordinarily enforced, that estoppels may not be asserted by one whose hands are stained with fraud. The effect of the covenants of warranty in the deed could not reasonably be to require the wife to protect and defend the title of the husband, conveyed to his grantee. This proposition is not denied, as we understand the appellant's learned counsel, but their effect, it is claimed, was to bind her to the extent of an undivided one-third interest in the lands. The statute (Rev. St. 1894, § 6963; Rev. St. 1881, § 5118) binds a married woman only "by her covenants of title in conveyance of her separate property." The conveyance in question was not of her separate property, and she was not a vendor in the sense of taking upon herself the covenants of title. Snoddy v. Leavitt, supra.

The appellant's claim, therefore, must fail from either of the standpoints of argument stated. In addition to the arguments referred to, counsel urge the agreement pleaded, as supporting his claim of title independently of the deed. The agreement does not purport to convey, and does not describe or locate, any property. It was executed for the evident purpose of specifying the consideration for and objects of the conveyance, and to obligate the appellant to perform the condition in said deed. The allegations of the complaint that the conveyance to the appellant was set aside as fraudulent are not met by the agreement if it should be construed as having the effect of a convey

ance.

The appellee claims title to the lands in suit-First, by reason of the sale upon a judgment against her husband alone; second, that the death of her husband consummated her prior inchoate right into a fee; and, third, through the conveyance to Ferguson and others. It is unnecessary to analyze these various claims and sources of title. It is perfectly clear that the conveyance to the appellant could not fall as to her husband and remain effective as to her, since she had no interest capable of conveyance apart from the interest of her husband. McCormick v. Hunter, 50 Ind. 186; Paulus v.

Latta, 93 Ind. 34; Snoddy v. Leavitt, supra; Rupe v. Hadley, 113 Ind. 416, 16 N. E. 391. In the last of the cases just cited, and in Mattill v. Baas, 89 Ind. 220, Ketcham v. Schicketanz, 73 Ind. 137, and Whitney v. Marshall (Ind. Sup.) 37 N. E. 964, it was held that the wife's joining in a fraudulent conveyance did not continue in force and deprive her of her rights as widow after the conveyance is adjudged fraudulent. The judgment of the circuit court was not erroneous, and is fully affirmed.

(140 Ind. 422)

SCHOOL CORP. OF TOWN OF RUSSELLVILLE v. RUSSELLVILLE LODGE NO. 141 OF FREE AND ACCEPTED MASONS.

(Supreme Court of Indiana, Jan. 30, 1895.) PARTITION-SUFFICIENCY OF COMPLAINT—ALLEGATIONS AS TO OWNERSHIP.

A complaint alleging that plaintiff and defendant were owners of certain land, and that defendant was the owner of certain rooms in a building thereon, with a right of egress and ingress through the remainder of the building, which belonged to plaintiff, but failing to allege that the parties held as joint tenants or as tenants in common, fails to state a cause for partition, since, by common law and by statute (Burns' Rev. St. 1894, § 1200; Rev. St. 1881, § 1186), partition can be had only between persons so holding.

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by the school corporation of the town of Russellville against Russellville Lodge No. 141 of Free and Accepted Masons. From a judgment for defendant, plaintiff appeals. Affirmed.

P. O. Colliner and J. H. James, for appellant. S. A. Hays, for appellee.

MCCABE, C. J. The circuit court sustained a demurrer to the appellant's complaint for want of sufficient facts, and, appellant refusing to plead over, appellee had judgment upon the demurrer. The assignments of error call in question that ruling only. The material facts alleged in the complaint are: That appellant and appellee are the owners of a part of the N. W. 4 of section 5, township 16 N., range 5 W., in Putnam county, described as follows, to wit: "Beginning 195 feet and 9 inches direct west of the northwest corner of lot No. 29, in the original plat of the town of Russellville, in said county; thence south 13 poles; thence west 15 poles; thence north 4 poles and 21 links; thence west 4 poles; thence north 7 poles and 15 links; thence east, to the place of beginning," -on which said real estate there is situated a large three-story brick building. That appellee is the owner of the south rooms of the third story of said building, with the right of ingress to and egress from appellee's said part of said building. That appellant is the owner of the remainder of said building. That, since appellant's ownership of her said

interest in said real estate and building, the same has been used and occupied by appellant in conducting and maintaining a common school for the use, benefit, and advantage of the pupils of school age within appellant's jurisdiction. That said building is old, of inferior and improper construction. The walls in said building are cracked inside and out, from top to bottom; bricks that were laid in the walls of said building have fallen out. Bricks laid in the walls of said building are loose, and in danger of falling out. The roof is old, given out, and leaky. Said building is unhealthful, unfit, unsuitable, unsafe, and hazardous for school purposes. That it is no longer large enough to accommodate the pupils within the corporate limits of said town who are entitled to the benefits and privileges of said school. That said building cannot be remodeled and repaired so as to make the same safe, healthful, and sufficiently commodious to accommodate the pupils of school age within appellant's jurisdiction. That appellant has, for the reasons aforesaid, condemned said building. That it has become and is necessary, for the reasons aforesaid, to build a new and more commodious and suitable building for the use and occupancy of the pupils and employés of said school corporation. That appellant, by her trustees, and the school corporation of Russel, in said county, by its trustees, have entered into a written contract to build and maintain a joint graded school building for said school town and said school township of Russel, to be located, erected, and maintained on other and different lands from those above described. That said building is in size 40x60 feet, three stories high. That the walls of said building are brick and stone. There are about 450,000 bricks in said walls. That said building can be taken down, and the brick and stone can be used in the construction of a new building. That the bricks in said walls are worth for such use at least $1,000. That the stone and other material in said building, or a part thereof, can be used in the construction of a new building, and would be of great value for such use and purpose. That appellant's said interest in said building is useless and worthless to appellant in its present aforesaid condition. That appellant cannot sell nor dispose of said interest, nor tear down and utilize the same, on account of and by reason of appellee's interest therein. That the appellee declines to sell her interest in said building, and refuses to join with appellant to make a sale or dispose of the same. That appellant is in need of the moneys and proceeds to be derived from the sale of said real estate and building and the material therein. That said real estate and building can be sold and disposed of as a whole, to an advantage to appellant and appellee, but not in any other manner. Prayer that the court hear and determine the respective rights and interests of the parties herete,

and order said real estate and building sold, and appoint a commissioner to make said sale, and that the proceeds derived therefrom, after paying costs and expenses, be awarded to the parties hereto, as their respective interests may appear, and for general relief.

Counsel for appellant have cited no authority and stated no reason why the complaint is good, except that, in justice and equity, they think the appellant ought to have a right to force a sale of the property and a division of the proceeds arising therefrom. They do not even state on what theory the complaint proceeds. Manifestly, the only theory on which it appears from its allegations to proceed is that of partition. But partition is only authorized by the statute among persons holding lands as joint tenants or tenants in common. Burns' Rev. St. 1894, § 1200 (Rev. St. 1881, § 1186). And the next section requires that the person applying therefor shall set forth in his petition or complaint a description of the premises and the rights and titles therein of the parties interested. There is no statement in the complaint of the rights and titles of the parties in and to the real estate, unless it be as to the building. There are many interests that parties may hold in real estate other than that of joint tenants or tenants in common. If the parties here held in any other way than as joint tenants or tenants in common, they could not wage a suit for partition. Lease v. Car, 5 Blackf. 353; Chandler v. Cheney, 37 Ind. 391; Arnold v. Arnold, 30 Ind. 305. The same was true at common law. 17 Am. & Eng. Enc. Law, 677, 678. and authorities there cited. We cannot tell from the statements in the complaint how they held. If they held as joint tenants or tenants in common, it was easy to so state, and the statute made it their duty to so state before they were entitled to partition. We can conceive no reason why, if they were in fact tenants in common or joint tenants, that fact was not stated, unless it be that, if the truth had been disclosed, it would have appeared the appellant was not entitled to partition.

But if we exclude from consideration all that is said about the ownership of the land on which the building is situated, and look alone to the averments in the complaint concerning the ownership of the building, the appellant is in no better situation. We would then have a case where partition is sought of a building alone on the basis that the defendant owns the south rooms of the third story, with the right to ingress and egress, and plaintiff owns the remainder of said building, and that the plaintiff wishes to terminate its use of the building, and hence asks a partition sale of the whole building. It is laid down in Am. & Eng. Enc. Law, 681, 683, that "it may be stated as a general proposition that only such property as is held in cotenancy can be partitioned, and that where the parties are neither joint ten

ants, tenants in common, nor coparceners, but each owns for himself in distinct portions, neither equity nor law has power to effect a change; neither can a division be enforced as between cotenant and others holding or owning distinct portions in severalty." See the authorities cited in notes 1 and 2, p. 683. A. purchased at execution sale so much of B.'s cellar as was not used by B. for the storage of his provisions and vegetables. It was held A. could not have partition of his interest; B.'s being several, and not joint. Johnson v. Moser, 72 Iowa, 523, 34 N. W. 314. It was held in Massachusetts that buildings owned in common, but standing on land to which the partitioners claim no title, are not the subject of partition. Rice v. Freeland, 12 Cush. 170. We are of the opinion that the complaint did not state facts sufficient to entitle the appellant to partition or any other relief, and that the circuit court rightly sustained the demurrer thereto. The judgment is affirmed.

(140 Ind. 351)

SMITH v. WOOD (RHEITMAN et al., Interveners).

(Supreme Court of Indiana. Jan. 31, 1895.) APPEAL-REVIEW-WEIGHT OF EVIDENCE.

A general assignment of error to the judgment of the trial court does not permit an inquiry, on appeal, into the weight of the evidence.

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by Augustus H. Smith against George P. Wood for the appointment of a receiver for the firm of which plaintiff and defendant were the members. Pending the receivership, a claim of the Capital National Bank, secured by chattel mortgage, was allowed as a preferred claim. Rheitman & Schulte, creditors of the firm, intervened and asked to have the order allowing said claim as a preference set aside. From a judgment of the general term affirming a judgment of the special term allowing the claim as a preference, Rheitman & Schulte appeal. Affirmed.

W. H. Pickerill and Miller, Winter & Elaim, for appellants. Chambers, Pickens & Moores, for appellee.

HACKNEY, J. The above-named appellant and appellee had engaged in business as partners, and a receiver had been appointed for the firm by the Marion superior court in a suit entitled as above. Pending the receivership, a claim for $10,151.20 was allowed by said court in favor of the Capital National Bank as a preferred claim, and upon the presumption that the same was secured by chattel mortgage. Later, and during the pendency of said receivership, Rheitman & Schulte, general creditors of said firm, holding a claim for $5,001.86, filed in said entitled cause in said court an intervening petition, setting up certain facts upon which they claimed that the