Black v. Richards

95 Ind. 184, 1883 Ind. LEXIS 12

• Court: Indiana Supreme Court
• Decided: November 27, 1883
• Docket: No. 10,958
• Status: Published

Opinions

Niblack, J.

The complaint in this case charged that Isaiah Black, Priscilla Pedlow and Amanda Crone are the owners of three undivided fifth parts of a tract of land in Clinton county, particularly describing it, and that Lydia Richards and .Elihu Black are together the owners in equal proportions of the remaining two undivided fifth parts of the same land; that the plaintiff Thomas Pedlow is the husband of Priscilla Pedlow, and that Robert W. Crone, the remaining plaintiff, is the husband of Amanda Crone; that William W. Richards, in his own right, and John J. Richards, as the administrator of the estates of Elizabeth Black and Ann J. Black, deceased, with the will annexed, claim some interest in the land adverse to the plaintiffs. Wherefore partition and all other proper relief were demanded.

Lydia Richards, William W. Richards and John J. Richards answered: First. In denial. Second. That the said Elizabeth Black and Ann J. Black were, during the last years of their joint lives, the owners in fee simple, and tenants in common, of the land described in the complaint; that on the 19th day of July, 1879, the said Elizabeth Black and Ann J. Black executed a will, by the terms of which'the survivor was to have and to hold said land during her life, and after the death of both of them, such land should become the property of the defendant William W. Richards in fee simple f that the said Ann J. Black died in August, 1879, and the said Elizabeth Black died on the 6th day of September, 1882 • that said will was duly admitted to probate on the 12th day of said last named month, a copy of which will was filed with the answer.

The plaintiffs demurred to this answer, but their demurrer was overruled, and, declining to plead further, final judgment was rendered against them upon demurrer.

The will does not, within the meaning of the code, constitute the foundation of the defence attempted to be set up by the answer. It is not an instrument purporting to have been executed by the plaintiffs, or any of them, or to be personally obligatory upon them, or any of them. Noble v. McGinnis, 55 Ind. 528; Parsons v. Milford, 67 Ind. 489. Construing everything most favorably to the defendants, the will affords the only evidence tending to establish title in William W. Richards to the land in dispute.

Written instruments, which are merely to be used as evidence, are not required to be filed with the pleadings in a cause, and'do not become a part of any pleading by being filed with it. R. S. 1881, section 362; Cassaday v. American Ins. Co., 72 Ind. 95, and cases cited by it; Sedgwick v. Tucker, 90 Ind.271.

Filed Nov. 27, 1883.

As the filing of a copy with the answer in this case did not make the will a part of that pleading, it follows that the demurrer did not raise any question, either upon the validity or the construction of that instrument in the circuit court, and that this appeal brings no question to this court touching the manner of its execution or legal effect of the will. The will being thus, in legal effect, eliminated from the answer, there remains only an averment of title in William W. Richards as a defence to the action. This is as to him only an argumentative denial of the facts charged in the complaint, and is no defence for the remaining defendants, who join in the answer without asserting any interest in the land. It is an old and well recognized rule in pleading that a plea which is bad in part is bad in loto, and that hence, where two defendants join in a plea which is insufficient for one, it is bad as to both. 1 Chitty Plead. 567; Poulk v. Slocum, 3 Blackf. 421. This rule has been held to be applicable to answers under the code of 1852, and applies with equal force to that class of pleadings under the code of 1881. Brownfield v. Weicht, 9 Ind. 394; Ward v. Bennett, 20 Ind. 440. The demurrer to the answer ought to have been sustained.

The judgment is reversed, with costs, and the cause remanded for further proceedings.