Barrett v. Choen

Berkshire, J. — The facts of the case, as found in the record, are about these: Charles G. Choen departed this life in Cass county, Indiana, on November 23d, 1883, intestate, leaving the appellees Cohens as his only legal heirs (Susan Choen being his widow), and seized of the following real estate in said county: All of that part of the southwest quarter of section 8, town. 26, range 1 east, that is south of the Southwestern Railroad, except three small pieces carved out of it. Charles G. Choen died intestate, and George W. Flannagan became his administrator. The appellees Dickerson, Donaldson and Mooney were tenants of the Choens. The administrator filed his petition to sell the said real estate to pay debts, in the Cass Circuit Court, and such proceedings were had that he obtained an order to sell the same, and on the 23d day of June, 1887, he sold it to the appellant, and on the same day, by order of the court, executed to him a deed therefor. [57] At the time the deed was executed there was a large quantity of wood on the land, in the cord, and crops, consisting of corn, wheat and oats, growing on the land, the same having been sowed and planted, and were being cultivated, by the said tenants. It appears that the Choens, without permission from the appellant, entered upon the real estate and removed therefrom a portion of the cord-wood, and were threatening to remove the remainder; that they were claiming the said growing crops, had entered upon said real estate and cut the wheat, and were threatening to remove the same, and had notified said tenants that the landlord’s share of said crops should be paid to them. The question presented for decision is, to whom do the wood and crops belong — the appellant or the appellees Ohoens ? The record does not inform us when the petition to sell was filed, whether before or after the crops were sowed and planted. In this state of the record, the presumption must be that the petition was filed afterwards. We are not, therefore, called on to decide what the effect would be had the petition been filed before. Upon the death of their ancestor the title to the real estate vested at once in the heirs, subject to an equitable lien in favor of creditors in case the personal estate proved insufficient to pay the indebtedness. Moncrief v. Moncrief, 73 Ind. 587; Miller v. Buell, 92 Ind. 482. The proceedings under the petition, including the order -of sale, were, in effect, a foreclosure of the equitable lien resting upon the real estate. The order of the court was necessarily confined to the real estate; the court had no jurisdiction, in the proceedings referred to, to order the sale of personal property or to determine any question involving personal property, and had it done so its action would have been •coram non judice and therefore void. R. S. 1881, sections ‘2336, 2346. The appellant could only acquire title through [58] his purchase and deed, for that was all that was involved in the proceedings and order to sell. Rogers v. Abbott, 37 Ind. 138; Lewis v. Owen, 64 Ind. 446; Angle v. Speer, 66 Ind. 488; Runnels v. Kaylor, 95 Ind. 503. The crops in question were personal property. Lindley v. Kelley, 42 Ind. 294; Northern v. State, ex rel., 1 Ind. 113; Harvey v. Million, 67 Ind. 90. To whom did they belong? To the Choens, necessarily; they were growing upon their lands, had been sowed, planted and cultivated by their tenants. Filed Feb. 2, 1889. There is no element of estoppel in the case. It is true that the fact appears that the administrator stated at the sale that there had been no reservation of the crops, but his statement could not prejudice the appellees. Besides, this was a judicial sale, and the rule caveat emptor applied. Martin v. Beasley, 49 Ind. 280; Henderson v. Whitinger, 56 Ind. 131. The appellees were parties to the proceedings to sell, but they were only parties in their capacity as heirs. The proceedings could only affect them as heirs. Compton v. Pruitt, 88 Ind. 171; Elliott v. Frakes, 71 Ind. 412; Unfried v. Heberer, 63 Ind. 67. The court made no order to sell the crops, but if it had, its order, for the reasons already given, would have been void. We can imagine no legal reason for the appellant’s claim to the cord-wood or crops. In a legal sense he had no more right to the wood or crops than he had to any other personal property belonging to the appellees. The judgment is affirmed, with costs.