Shetterly v. Axt

76 N.E. 901, 37 Ind. App. 687, 1906 Ind. App. LEXIS 85

• Court: Indiana Court of Appeals
• Decided: February 16, 1906
• Docket: No. 5,910
• Status: Published

Opinions

Roby, C. J.

Suit by appellees for a partition of certain described real estate, and to quiet their titles. Appellant Shetterly was made a defendant, and answered in two paragraphs: (1) General denial; (2) setting np facts, the detail of which is not at present material. He also filed a cross-complaint, making the plaintiffs and his codefendant, guardian of Olara Shetterly, defendants. Said guardian demurred to said cross-complaint for the reason that the same did not state sufficient facts to constitute a cause of action. The plaintiffs likewise demurred for the same reason. The record shows plaintiffs’ demurrer to have been sustained to the second paragraph of said appellant’s answer. Demurrers to the cross-complaint were sustained. Trial had, general finding for appellees, and judgment accordingly.

1. The controversy grows out of a difference of opinion as to the meaning and construction of the last will of Christian Axt, deceased, under whom all parties claim. All questions argued by said appellant relate to the construction of said instrument, a copy of which is filed with the second paragraph of answer and cross-complaint and attempted to be made a part thereof by reference. Appellees make the point in their brief, to which said appellant has not replied, that such instrument is not the foundation of the action, and therefore can not be made part of the pleading by exhibit and reference. The proposition is supported by many decisions. Eddy v. Cross (1901), 26 Ind. App. 643; Jewett v. Perrette (1891), 127 Ind. 97. It follows that no question relative to the construction of said will can be considered, and that the sufficiency of the pleadings must be determined without reference to the exhibit.

2. The facts set up in the second paragraph of answer are provable under the general denial. §§1067, 1083 Burns 1901, §§1055, 1071 R. S. 1881. The judgment can not, therefore, be reversed on account of the sustaining of such demurrer. Wickwire v. Town of Angola (1892), 4 Ind. App. 253.

3. It is averred in the cross-complaint that the cross-complainant and the defendants thereto are the owners as tenants in 'common of certain real estate therein described. It is further stated that George Shetterly is the owner of an undivided one-eighteenth, and the plaintiffs each one-sixth part thereof, and that defendant Clara Shetterly owns an undivided two-eighteenths part thereof; that defendants Hammond and Ditmars are made defendants to answer to their interests, if any. The prayer is for partition and that the parties named “be declared the owners of said real estate in the shares above set out and for all other proper relief.” The pleading states that the cross-complainant and the defendants are the owners as tenants in common of the land. It shows the interests of the several parties with exactness. It is not necessary to partition of real estate that the party seeking such relief be in possession of the lands. Godfrey v. Godfrey (1861), 17 Ind. 6, 79 Am. Dec. 448.

Other objections to the complaint made are based upon the provisions of the will, and for the reasons above stated are not available. The cross-complaint was sufficient as an application for partition. §1201 Burns 1901, §1187 R. S. 1881.

For error in sustaining the demurrer, to the cross-complaint, the judgment is reversed, and the cause remanded, with instructions to overrule such demurrer, and for further consistent proceedings.