Rozell v. Cranfill

Indiana Court of Appeals

Rozell v. Cranfill

85 N.E. 792, 43 Ind. App. 298, 1908 Ind. App. LEXIS 238

CourtIndiana Court of Appeals

DecidedOctober 14, 1908

DocketNo. 6,426

StatusPublished

Cited by1 cases

This text of 85 N.E. 792 (Rozell v. Cranfill) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rozell v. Cranfill, 85 N.E. 792, 43 Ind. App. 298, 1908 Ind. App. LEXIS 238 (Ind. Ct. App. 1908).

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Opinions

Rabb, C. J.

The questions of law involved in this ease arise upon the following facts appearing in the special finding of the court below.

On April 8, 1872, Barzilla Rozell died intestate, the owner of four-fifths of 120 acres of land in Hancock county, and left surviving him, as his sole heirs at law, Susan Rozell, his widow, and appellants, his children. Subsequently the widow intermarried with John Childers, and after this she and her second husband brought suit in the Hancock Circuit Court, setting forth said facts, and asserting that Susan, as such widow, was the owner in fee simple of the undivided one-third of said land, and said appellants the undivided two-thirds thereof, and praying that said Susan’s interest be set off to her in severalty, and such proceedings were had therein that a decree of partition was duly entered by said court, in which it was ordered that eleven forty-fifths part in value qf said 120 acres be set off to said Susan Childers in severalty, in fee simple. Commissioners were duly appointed to make said partition, and said commissioners set off to said Susan, as and for her undivided interest in said premises, the lands described in appellants’ complaint. Said commissioners duly reported their action therein to the court, and said partition was duly confirmed by the court. Afterwards said Susan and her husband executed a deed of conveyance for said premises to John Trees, who paid full value for the same. Said Trees subsequently conveyed the same, for a valuable consideration, to the appellee, who claims title to the land by virtue of said deed. The marriage relation between said Susan and John Childers continued until December 18, 1894, when said Susan died, leaving the appellants, her children by Barzilla Rozell, surviving her.' Upon this state of facts the appellants claim title [300]*300to the premises under and by virtue of §3035 Burns 1908, §2484 E. S. 3881, which is as follows: “If a widow shall marry a second or any subsequent time, holding’ real estate in virtue of any previous marriage, and there be a child or children or their descendants alive by such marriage, such widow may not, during such second or subsequent marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be: Provided, however, that such widow and her living husband may alienate such real estate, if her children by the marriage in virtue of which such real estate came to her shall all be of the age of twenty-one years and join in such conveyance. ’ ’

1. It is the contention of appellee, and was evidently the theory upon which the case was decided by the court below, that the judgment in the partition proceedings conclusively adjudicated the question of title to the lands in question against the appellants, and had the effect to loosen the ties by which the statute had bound the hands of the widow and her second husband, and empowered her to convey the lands she had derived by descent from her first husband. This contention cannot be sustained. The proceedings instituted by the widow against her children was purely and simply an action for the partition of lands they owned in common. No other relief was sought or granted. All the facts upon which the appellants’ rights in this case are founded were set forth in the widow’s complaint in the partition suit, and they were adjudged by the court to be true.

It is true that in decreeing partition it was adjudged that the widow was the owner in fee simple of the undivided eleven forty-fifths parts of the premises, but this, if it were any adjudication of title, is not' antagonistic to the claim asserted by the appellants. Appellants claim the land, not [301]*301because their mother did not own the interest that she took from her deceased husband in fee simple, but because during the second marriage relation she was disqualified by law from alienating that fee-simple interest, and when she died, such marriage relation still subsisting, the land descended from her to them.

The judgment of the court below is reversed, with instructions to restate the conclusions of law in conformity with this opinion.

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Rabb, C. J.

The questions of law involved in this ease arise upon the following facts appearing in the special finding of the court below.

On April 8, 1872, Barzilla Rozell died intestate, the owner of four-fifths of 120 acres of land in Hancock county, and left surviving him, as his sole heirs at law, Susan Rozell, his widow, and appellants, his children. Subsequently the widow intermarried with John Childers, and after this she and her second husband brought suit in the Hancock Circuit Court, setting forth said facts, and asserting that Susan, as such widow, was the owner in fee simple of the undivided one-third of said land, and said appellants the undivided two-thirds thereof, and praying that said Susan’s interest be set off to her in severalty, and such proceedings were had therein that a decree of partition was duly entered by said court, in which it was ordered that eleven forty-fifths part in value qf said 120 acres be set off to said Susan Childers in severalty, in fee simple. Commissioners were duly appointed to make said partition, and said commissioners set off to said Susan, as and for her undivided interest in said premises, the lands described in appellants’ complaint. Said commissioners duly reported their action therein to the court, and said partition was duly confirmed by the court. Afterwards said Susan and her husband executed a deed of conveyance for said premises to John Trees, who paid full value for the same. Said Trees subsequently conveyed the same, for a valuable consideration, to the appellee, who claims title to the land by virtue of said deed. The marriage relation between said Susan and John Childers continued until December 18, 1894, when said Susan died, leaving the appellants, her children by Barzilla Rozell, surviving her.' Upon this state of facts the appellants claim title [300]*300to the premises under and by virtue of §3035 Burns 1908, §2484 E. S. 3881, which is as follows: “If a widow shall marry a second or any subsequent time, holding’ real estate in virtue of any previous marriage, and there be a child or children or their descendants alive by such marriage, such widow may not, during such second or subsequent marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be: Provided, however, that such widow and her living husband may alienate such real estate, if her children by the marriage in virtue of which such real estate came to her shall all be of the age of twenty-one years and join in such conveyance. ’ ’

1. It is the contention of appellee, and was evidently the theory upon which the case was decided by the court below, that the judgment in the partition proceedings conclusively adjudicated the question of title to the lands in question against the appellants, and had the effect to loosen the ties by which the statute had bound the hands of the widow and her second husband, and empowered her to convey the lands she had derived by descent from her first husband. This contention cannot be sustained. The proceedings instituted by the widow against her children was purely and simply an action for the partition of lands they owned in common. No other relief was sought or granted. All the facts upon which the appellants’ rights in this case are founded were set forth in the widow’s complaint in the partition suit, and they were adjudged by the court to be true.

It is true that in decreeing partition it was adjudged that the widow was the owner in fee simple of the undivided eleven forty-fifths parts of the premises, but this, if it were any adjudication of title, is not' antagonistic to the claim asserted by the appellants. Appellants claim the land, not [301]*301because their mother did not own the interest that she took from her deceased husband in fee simple, but because during the second marriage relation she was disqualified by law from alienating that fee-simple interest, and when she died, such marriage relation still subsisting, the land descended from her to them.

The judgment of the court below is reversed, with instructions to restate the conclusions of law in conformity with this opinion.

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Bluebook (online)

85 N.E. 792, 43 Ind. App. 298, 1908 Ind. App. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rozell-v-cranfill-indctapp-1908.

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