Finley v. Cathcart

Jordan, J. Appellant instituted this action to quiet title to certain described real estate situate in Washington county, Indiana. Appellees Daniel E. Cathcart and wife appeared to the action, and filed an answer in two paragraphs, the first being the general denial. The second set up facts whereby they sought to establish the defense of res judicata between the appellant and the appellee Daniel E. Cathcart. Upon the question of title to the lands in dispute by reason of a judgment in an action for partition, wherein the appellant and said appellee were defendants, but were defaulted by reason of their failure to appear. Under the issues joined, the court made a special finding of facts, and stated its conclusion of law adversely to the appellant, and over her objections rendered a judgment against her as to the lands in controversy. The material facts in the case, as found by the court, are as follows: In 1891, William Cathcart died,, at Washington county, Indiana, intestate, the owner in fee simple of eighty acres of land, of which that described in the complaint was a part. He left surviving no widow, but seven children, including the appellant and appellee Daniel E. Cathcart. Appellant, after the .dea-th of her said father, appears to have inter-, married with one Finley. By virtue of the death of their father, his lands descended to. his children in equal parts, and they held the same as tenants in common. In 1892, two of the children conveyed their interest of two-sevenths to the appellant, and in 1893 appellee, Daniel E. Cathcart, by his deed of “general — 472 — warranty,” conveyed his undivided one-seventh in the said tract of land to his sister, the appellant. This deed was delivered, but not recorded. Including the interest which appellant acquired by descent and that W'hich was vested in her by the conveyances heretofore stated, she became invested with, and was the owner of an undivided four-sevenths of the real estate. Some time prior to September, 1896,'William F. Cathcart, one of said children, conveyed his one-seventh to one Reyman, who, prior to September, 1896, conveyed the same jointly to Walter, William S., and Stephen S. Mabry. Prior then, to September 14, 1896, said tract of land was held undivided in common as follows: One-seventh by the Mabrys jointly, four-sevenths, by appellant, one-seventh each by John M. and Minnie E. Cathcart, the two latter being son and daughter of said William Cathcart, deceased. On the 14th day of September, 1896, the three Mabrys filed a petition for partition in the Washington Circuit Court, making the appellant, Mrs. Finley, John M. Cathcart, Minnie Cathcart, and the appellee, Daniel E. Cathcart, defendants thereto, claiming or alleging in their petition that they, the plaintiffs, each owned one-twenty-first interest in value in the lands, and that appellant, Phalicia A. Finley, owned three-sevenths, and appellee, Daniel E., John M. and Minnie Cathcart each owned one-seventh. All of the said defendants, being duly notified of the pendency of said action, failed to appear and were defaulted, and thereupon the court, on the petition in said proceeding, ordered that the land be partitioned as follows: One-seventh in value jointly to said petitioners, three-sevenths to the appellant, Mrs. Finley, and one-seventh to appellee, Daniel E., and one-seventh each to John M. and Minnie E. Cathcart. Commissioners were appointed by the court, and they partitioned the lands accord — 473 — ingly, assigning to Daniel E. Cathcart, the appellee, one-seventh of the real estate, which is the same now in dispute. The partition so made was confirmed by the court. The court further finds “that plaintiff, but for said partition record, would own one-seventh in value more than was set off to her in severalty in said action.” In view of these facts, counsel for appellant contends that she is not precluded or estopped by the judgment of the court in the partition action from asserting title to the appellee’s interest in the land through his deed of conveyance to her; while on the other hand, counsel for appellee earnestly insists, that as the statute relative to partition proceedings requires the rights and title of the parties to be stated in the petition, and as the petition filed by the Mabrys alleged that appellee’s interest was one-seventh and appellant’s three-sevenths, and as partition was made accordingly, and confirmed by the court, the question is res judicata, and appellant is now estopped by the judgment from asserting through her deed from appellee any claim against him to the one-seventh which had been vested in her-by said conveyance prior to the commencement of the action for partition. Or, in other words, the insistence of counsel for appellee virtually is that upon the issues tendered alone by the petition of the' plaintiffs in the partition action the court was authorized to order, as it did, under the averments of the petition, that the interests of the several defendants in the land, as therein alleged, be partitioned to each of them in severalty, and thereby conclusively settle, as between each of them, all their rights, title, and interests in and to the premises. In order to determine the question at issue between the parties to this appeal, an examination of the statute concerning the partition of lands becomes essen — 474 — tial, as it certainly will be helpful in arriving at a correct solution of the controversy. Section 1200, Burns’ R. S. 1894 (1186, R. S. 1881), provides that, “Any person holding lands as joint tenant or tenant in common * * * may compel partition thereof in the manner provided by this act.” The section next following provides that, “Any such tenant may apply to the circuit court, * * * by petition, setting forth a description of the premises and the titles therein of the parties interested.” By the next section it is provided that the pleadings, proceedings and practice shall be the same as in civil actions, except as otherwise provided in this act. Section 1203, Burns’ R. S. 1894, in part, reads as follows: “If upon the trial of any issue, or upon default, or by consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.” Section 1207, Bums’ R. S. 1894, provides that, “Two or more persons may, if they choose, have their shares set off together.” It is evident that any person who comes within the provisions of section 1200, supra, when the land is susceptible of division without damage to the owners, may enforce partition, and is entitled to have his interest in the premises assigned to him in kind, and1 thereby have and hold the same in severalty. But it does not follow in such a case, when one or more co-tenants, as was done in the partition action herein mentioned, petition the court for partition, making other alleged co-tenants defendants, and where the latter are defaulted, and do not appear to answer the — 475 — petition, and no cross-complaint is filed by any of them tendering any issue between themselves, and they in no manner express to the court a desire or request to have their respective interests in the premises set off, that the court may, under such circumstances, proceed to order, upon the petition alone, that partition be made among such defendants, and assign to each the interests alleged in the petition, and thereby preclude said defendants, as between each other, as to all their rights, titles and interests in and to the real estate which was the subject of partition. The language of section 1203, supra, is, “If * * * it shall appear that partition ought to be made the court shall award an interlocutory judgment that partition be made to parties who may desire the same, * * * taking into consideration advancements * * * and the residue of the premises shall remain for the persons entitled thereto, subject to future partition.” (The italics are our own.) In Pipes v. Hobbs, 83 Ind. 43, this court, in passing upon the sufficiency of a petition in a partition action, said, “The statute provides that ‘the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, * * * and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.’ * * * “The court needsto know the interest or shares so far as to be able to specify them in making the partition, —the portions that are to be set off, each to the owner or owners thereof desiring partition, and the residue, which is not to be partitioned among its owners, must be known. “When there are two or more defendants, and the complaint has described the premises and the plaintiff’s right and title therein, showing the share which — 476 — he desires to have assigned to him by partition, it is a sufficient farther compliance with the statute to set forth the rights and titles of the parties interested in the residue of the premises as one share owned by them all, leaving the parties entitled to such residue, each of whom should be best qualified to state his individual interest, to seek partition for themselves. If one of such defendants desire that his individual share be set off to him, he has an interest in having the record to indicate that share, and he may state it in his own pleading.” This decision seems to assert a correct rule, and supports us in holding, as we do, under the facts in this case, that it was not essential in the partition action instituted b'y the Mabrys, in order to award to them the right or relief to which they were entitled, for the cottrt to so extend its order as to direct partition to be also made among the defendants, and order shares corresponding to those recited by the plaintiffs in their petition to be set off in severalty to each of said defendants. But, the court in the case in question having so ordered, and also confirmed the action of the commissioners, in assigning in severalty the alleged interests to the defendants, including appellant and the appellee, the question is, can the appellee, who had devested himself of all interest in the land prior to the action in partition, shield himself behind such judgment, and thereby parry the force and effect of his warranty deed, and succeed in virtually wresting the land from the appellant for his own benefit? It has been repeatedly held by this court that ordinarily a judgmentin partition does not settle questions of title unless the same have been directly put in issue by the pleadings; or, in other words, the judgment does not create a new title, nor affect after-acquired titles, but simply divides the premises into separate — 477 — shares under the titles existing at the time of partition. This seems to be the doctrine asserted in Miller v. Noble, 86 Ind. 527; Elston v. Piggott, 94 Ind. 14; Habig v. Dodge, 127 Ind. 31. Vide Black on Judgments, sections 660 and 661. Ordinarily the presumption is that title is not in issue in a partition proceeding. (Green v. Brown, 146 Ind. 1. But it must be accepted as a well affirmed principle of law that a judgment or decree in a partition suit, when the court has jurisdiction over the parties and the subject-matter, is as conclusive between the parties upon all the material issues in the case which the court was called upon to examine, and which, under the pleadings, were tried and determined, as are judgments in other actions. Freeman on Co-Tenancy, section 530; Isbell v. Stewart, 125 Ind. 112; Habig v. Dodge, supra; Freeman on Judgments, section 304; Black on Judgments, supra. In fact, it is an essential element or principle underlying the doctrine of former adjudication that the judgment in the former action settles all material issues involved between the parties to that action, and all matters which might have been properly litigated and determined within the issues made or tendered by the pleadings in the case, and to this extent the judgment is not subject to a collateral attack. 1 Van Fleet’s Former Adjudication, p. 2; Faught v. Faught, 98 Ind. 470. This is the rule asserted and adhered to by this court from Fischli v. Fischli, 1 Blackf. 360, down to the, present time, and this principle is applicable to final judgments in partition the same as it is to those in other actions. Watson v. Camper, 119 Ind. 60. The court or jury trying the cause, however, cannot, in any case, legitimately go outside of the issues under the' pleadings, and determine matters not embraced within such issues; and what was not within the latter, although they — 478 — might have been extended to include it, will not, at least, be presumed to have been conclusively adjudicated. Griffin v. Wallace, 66 Ind. 410, and cases there cited. It is affirmed in Jones v. Vert, 121 Ind. 140, that a party, to successfully invoke the doctrine of former adjudication, must be one who, in the former action, tendered to the.party against whom he invokes it an issue to which the latter could have demurred or pleaded; and, where two or more defendants make1 an issue with the plaintiff, a judgment determining that issue in favor of the defendant does not settle the question between codefendants. In the case last cited the action was instituted to foreclose a vendor’s lien. The defendants sought to avail themselves of the defense of former adjudication, and alleged in their answer that in a former suit prosecuted by one Sterne to foreclose a mortgage, to which action the plaintiff and defendants were party-defendants, the former had set up the lien then in controversy, and the court rendered its judgment against Sterne, the plaintiff, and quieted the title of the defendants to the real estate described in the complaint. It was held that these facts fell far short of constituting a good defense. The court, in passing upon the question, in the course of its opinion, per Mitchell, J., said: “The defendants in the foreclosure suit might possibly have put the validity of the vendor’s lien in issue by filing a cross-complaint. Woolery v. Grayson, 110 Ind. 149. This does not appear to have been done, and we cannot presume that it was. There does not seem to have been any issue tendered or made, between the defendants. In short, there does not appear to have been any suit pending between them. Any judgment, therefore, that the court may have pronounced, which purported to settle any title, or claim, between the defendants, was coram non judice, and void. McFadden v. Ross, 108 Ind. 512; Griffin v. Wallace, 66 Ind. 410.” — 479 — It is asserted in Wilbridge v. Case, 2 Ind. 36, that “'without an issue, nothing is tried, and, of course, nothing determined, and a judgment in such case should bind neither party.” Unless it can be said that the issue raised alone by the petition in the partition suit was sufficient to warrant the court in determining the question of title between appellant and appellees then there was no other issue, as we have seen, under which it could have been decided. The facts necessary to constitute a cause of action in favor of the Mabrys, and entitle them, under the statute, to a partition of their alleged moiety, it would seem, were that they held and owned the same in the lands described in their petition, undivided, as tenants in common with the defendants. These appear to have been the only material issues which were tendered by the petition to the defendants. All such matters, and all others coming within the material issues in the case, as between the plaintiffs and defendants, must be held to have been settled by the judgment, and as to such matters it would not be open to collateral attack. But it cannot, in reason, be said that the issue so raised by the petition must be presumed and held to have conclusively settled all matters between the defendants. As it appears, none of the defendants filed a cross-complaint, nor in any manner appeared to the action, and requested partition of their interests, and in reality no issue was raised in any way by the defendants as between each other. It is evident, therefore, under such circumstances, in the light of the authorities, that it can -be said that the court was not called upon, nor was it relevant for it, to examine into and determine matters of an adverse nature existing between any of the defendants. While it may be conceded that under section 386, Burns’ R. S. 1894 (383, R. S. 1881), the defendants, by their de — 480 — fault in question, as between them and Mabrys, the plaintiffs, must be deemed to have admitted all the material and traversable averments constituting the cause of. action. That such is ordinarily the result of a defendant’s default, has been repeatedly decided by this court. But surely the rule cannot be extended so as to justify a holding that appellant, by her default, admitted that she was seized of an interest in the realty of three-sevenths only, and appellee, her codefendant, of one-seventh. In fact, we fail to recognize any features or provisions in the partition statute which can be said, on the default of the defendants in the action instituted by the Mabrys, to have put in issue, ipso facto, any title or interest between any of said defendants, so as to warrant the court by its judgment to conclusively adjudicate the same. Decisions of other states, to which we have been referred, were in partition procedings based upon statutes quite different from our own, and therefore are not influential on the question here involved. The case of Forder v. Davis, 38 Mo. 107, in no manner lends support to appellees’ contention. The facts in that case were dissimilar from those in this appeal, and the statute under which the partition there involved was made differed, in an essential respect, from our own. It is true, the Missouri statute required the petition to set forth the titles of all the parties interested in the lands, but it also required the court to declare the interests of the defendants in the realty, as well as that of the petitioner, and it made such judgment binding and conclusive as to all parties to the proceedings. It may be correctly said that the Mabrys by their petition for partition, challenged the defendants, one and all, to set up and avail themselves of any title or matter which would defeat the former in their demands for partition, or which would diminish the — 481 — interest which they claimed to have and hold in the real estate; but certainly it cannot be succesisfully urged that the petition also required or compelled the appellant to present and litigate all matters, rights, and titles as between herself and appellee, and, having failed to do so, she must now, under the circumstances, be held to be precluded by the court’s judgment in ordering and confirming partition among the defendants. The contention that, under the facts, such must be the result, in our opinion is destitute of any reasonable support. To affirm such a rule would not only, as we believe, operate mischievously in the future, but would manifestly work an injustice in the case at bar. That defendants in á partition proceeding may, between themselves,' by a cross-complaiut, settle all legal or equitable rights and titles is well settled. Martindale v. Alexander, 26 Ind. 104; Milligan v. Poole, 35 Ind. 64; Ferris v. Reed, 87 Ind. 123. Without further extending this opinion, we are constrained to hold that the petition filed by the Mabrys for partition did not put in issue, between appellant and appellees, the title which the former held by the deed from the latter, and therefore, she is not precluded or estopped by the judgment from asserting, as against appellees, her title to the land in dispute through said deed. We must not be understood as holding that, had appellant, under the circumstances, been satisfied with the share assigned to her, and had accepted and acquiesced in such partition, she would not have thereby confirmed the same, and made it effectual between her and the appellee, nor as to what would be her situation were this controversy between her and an innocent purchaser for value from appellee. These questions are not involved, and therefore not decided. — 482 — It follows that the court erred in its conclusion of law, and the judgment is reversed, and the cause remanded to the lower court, with instructions to restate its conclusion in favor of appellant, and render its judgment quieting her title to the lands in question.