« ForrigeFortsett »
 The burden of proving the facts which , evidence, nor has she set out any such fact would warrant such a conclusion of law was which she claims is established by the eviupon appellant, and, if not found, we must dence, but not stated in the finding. An inassume they were not proved. Raynes v. vestigation, however, discloses some eviStaats-Raynes Co. (1918) 68 Ind. App. 37, dence to sustain every ultimate fact expressly 119 N. E. 809; Calumet, etc., Co. v. Mroz found, by being stated in the finding, or im(1922, Ind. App.) 137 N. E. 627; Chicago, etc., pliedly found, by being omitted therefrom. R. Co. v. Kaufman (1921, Ind. App.) 133 N. E. This is true, notwithstanding the variance 399; S. J. Peabody, etc., Co. v. Miller (1922, between the evidence and finding as to when Ind. App.) 133 N. E. 591.
appellant last heard of or from her husband, [3-5] The only facts found, bearing upon as this at most is a mere evidential fact. the question under consideration, are the fol- | True, some of such ultimate facts appear to lowing: Appellant is the widow of the de- be based upon inferences; but, as they are ceased employee, Vide Jelicic. She had been reasonable, we must accept such facts as true living apart from him since January 23, 1914. on appeal, although contrary inferences may He had sent her the sum of $1,650 prior to be equally as reasonable, and such as we 1917, but she was not dependent upon him for would have been more inclined to draw, had her support at the time of his death. She the questions been submitted to us as original last heard of him on April 13, 1921, a little ones. City of Linton v. Jones (1920) 75 Ind. more than three months prior to his death. App. 320, 130 N. E. 541; Utilities Coal Co. Do these facts warrant the conclusion of v. Herr (1921) 76 Ind. App. 312, 132 N. E. law, essential to appellant's right of recor- 262. In reaching this conclusion we note ery, viz. that the laws of this state imposed that the only evidence of facts, on which the an obligation on said deceased employee to Industrial Board could have based a consupport appellant at the time of his death?clusion, as to whether or not the laws of this We are clearly of the opinion that they do state imposed an obligation upon appellant's not, for the following reasons: While it is husband to support her, at the time of his true, as a general rule, that the laws of death, was given by appellant herself. It this state impose upon husbands the duty of is significant that she did not give any evisupporting their wives, such duty does not dence of misconduct on the part of her husexist under all circumstances. To illustrate : band, which excused her from living with It does not exist where a wife abandons her him at the time of his death, or any evihusband, or voluntarily and without justi- dence that at such time she was free from fication lives apart from him. Summers v. conduct which would have relieved her hus Summers (1912) 179 Ind. 8, 100 N. E. 71; band from the obligation imposed upon him Brown v. Templeton Coal Co. (1923, Ind App.) by the laws of this state to give her sup137 N. E. 724. In the instant case no fact is port. found which explains the conduct of ap  It is also significant that, although the pellant in living apart from her husband deceased employee had been in this country for more than seven years prior to his death. for more than seven years, had written her In face of the burden resting on her to es-only occasionally and had ceased to send tablish her right to receive compensation, we her money for more than four years prior to may not assume that her conduct in that his death, she gave no evidence of having regard was attributable to the fault of her written to him, or made any effort to join husband, and thereby conclude that he was him in this country, or of having made any under a legal obligation to support appel- complaint of his long absence, or of his faillant, by virtue of the laws of this state, not. ure to send her any portion of his earnings, withstanding her absence in a foreign land during the time stated. These were facts for more than seven years.
This is in ac- peculiarly within her knowledge, and perti. cord with the well-established rule that a nent to an issue on which she had the bur. party, claiming a right conferred by statute, den. Her failure to give any evidence in ex. must bring himself fully and clearly within planation thereof was a circumstance the its provisions before he can enforce it. Staf-court had a right to consider, and may have ford v. St. John (1904) 164 Ind. 277, 73 N. E. been controlling in the determination of 596; Board v. Jarnecke (1905) 164 Ind. 658, otherwise would have been in even balance.
material questions of fact against her, which 74 N. E. 520; Woodward v. State (1910) Barnett v. Gluting (1891) 3 Ind. App. 415, 29 174 Ind. 743, 93 N. E. 169.
N. E. 154, 927; Bump v. McGrannahan (1915)  The only other question before us re- 61 Ind. App. 136, 111 N. E. 640; Godwin v. lates to the sufficiency of the evidence to sus- De Motte (1916) 64 Ind. App. 394, 116 N. E. tain the finding. Appellant in the proposi- 17; Indianapolis, etc., T. Co. v. Montfort. tions or points of her brief has not set out (1923, Ind. App.) 139 N. E. 677. any ultimate fact which she claims is stated For the reasons stated the award is af. in the finding, but not established by the firmed.
there was no reversible error in refusing tesRODEBECK V. RICHARDSON et al. timony of trial judge that if he had known (No. 1 1831.)
purchaser was objecting to title he would not
at the time he took action on administrator's. (Appellate Court of Indiana, Division No. 2. report have approved it, where only inference June 3, 1924.)
therefrom was that court would have post1. Executors and administrators @319-Sale poned action until purchaser had been given by administrator under court order is judi opportunity to present his objection to ap
proval of report. cial sale.
A sale by an administrator under order and decree of court is strictly a judicial sale.
Appeal from Circuit Court, Hancock Coun. 2. Executors
ty; Fred C. Gause, Judge. and administrators 375 Sales by administrators effective after ap In the matter of the estate of Henry Fraproval by court.
lich, deceased. Petition by Frederick RodeSales by administrators are not only made beck against Guy Richardson, administraunder court order, but must be reported to and tor, and others, to set aside order approving approved by court before becoming effective. sale of land. From judgment denying peti3. Executors and administrators 76%Ad. tioner relief, he appeals. Afirmed.
ministrator's act, approved by court, becomes Samuel J. Offutt and Charles H. Cook, judicial act.
both of Greenfield, for appellant. An administrator must report his pro
Arthur C. Van Duyn and Charles L. Lin. ceedings to court, and after court approves dall, both of Greenfield, for appellees. bis act it adopts it as its own, and it becomes a judicial act. 4. Executors and administrators 377–Par.
MCMAHAN, J. Guy Richardson adminis ty for whose benefit notice is given may trator of the estate of Henry Fralich, herewaive,
after referred to as appellee, filed his peti. Object of notice of sale is to inform public tion for the sale of real estate to pay debts of nature and condition of land to be sold and All of the heirs of the decedent and all lientime, place, and terms, and party for whose holders were made defendants. On February benefit it is given may waive omission to give 4, 1920, the court directed said administrapotice or defects therein.
tor to sell such real estate at private sale, 5. Executors and administrators 362-11 after giving notice of the time, terms, and
object of notice of sale is attained, error or place of sale by two weekly publications in defects therein are immaterial,
a certain weekly paper. On April 25, 1921, If objects to be gained by giving notice of appellee filed his report reciting, among othsale are attained, immaterial errors and de- er things, that he had given notice of sale fects will not affect its sufficiency.
as required by the order of the court, that 6. Executors and administrators 375, he sold such real estate to appellant, and
When confirmation of sale cures defects in asking that said sale be approved. The sale notice stated.
was approved, deed ordered, reported, and Where terms of sale or notice given are approved, with directions to deliver the same such as court had authority to direct in de- to appellant when he complied with the or. cree ordering property sold, confirmation of sale by court cures irregularities in terms of der of the court fixing the terms of sale.
May 18, 1921, appellant filed his petition sale as made or in notice of sale.
asking the court to set aside the order ap7. Executors and administrators 362–Mis-proving the sale, on the ground that the take in notice of sale, not misleading to pube written agreement entered into between him lic, held immaterlal.
and appellee required appellee to furnish Where mistake in notice as to date of sale is not such as to mislead the public, it is im- an abstract showing a merchantable title to material and of no effect; such being especially the real estate; that the abstract which aptrue where mistake is obvious on inspection.
pellee furnished did not include the papers, 8. Executors and administrators Ema 362-Do- estate sold, and did not show a merchantable
proceedings, and judgment ordering the real fect in notice of sale of land held immaterial. title; that, on having certain objections to
Where only parties who could attack sale of land by administrator to pay debts because the title pointed out, appellee caused suit to of defects in notice of sale were heirs of de- be instituted to quiet the title to correct the cedent, who by their subsequent warranty deed alleged defects; that, after the decree quietwere barred from action to set aside and va- ing title had been entered, appellee again tencate sale, defects in potice were immaterial. dered an abstract, but that the same failed 9. Executors and administrators 380(3)
to show a merchantable title, in that it did Refusal to admit evidence of trial judge that not show that appellee had caused notice of if informed of objection he would not have the time of the sale to be published; that approved administrator's sale held not re- the notice of sale as shown by the abstract versible error,
and by the record was published in the paper In proceeding to set aside order approving named on the 5th, 12th, and 19th days of sale of land by administrator to pay debts, February, and stated that appellee would of
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fer the real estate for sale February 4, 1920, f advertise the land for sale. Appellee refused and that no other or different notice of such to readvertise unless appellant would agree sale was given; that appellant notified ap to thereafter bid the land in at the same pellee of the defects in said notice, and that price theretofore agreed on. Appellant reby reason thereof he would not complete the fused to do this. Appellee had also secured purchase of the real estate; that appellee, a warranty deed from all the heirs of the with full knowledge of said fact, presented decedent, conveying the land to appellant, his report of sale to the court and secured but appellant refused to complete the sale, the approval thereof; that appellant had no upon the ground that the notice was not sufknowledge that appellee was intending to ficient to authorize appellee to make the make such report of sale until after the same sale. Following appellant's refusal, appelhad been filed and approved. Appellee filed lee's report of the sale was filed and apan answer to this petition, and, after hear- proved, and deed ordered, reported, and aping evidence, the court denied appellant any proved. relief. Appellant's motion for a new trial Appellant entered into possession of the for reasons, (1) that the decision is not sus- real estate in controversy within a few days tained by sufficient evidence, (2) that the after the agreement between him and appeldecision is contrary to law, and (3) in exclud- lee was signed. In his answer to appellant's ing certain evidence, being overruled, he ap- petition appellee alleged that such possession peals.
was taken under the contract of purchase subThe facts as disclosed by the evidence are, ject to the approval of the sale by the court. in substance, as follows: The order of the Appellant claims that he took possession of court directing the sale of the real estate the land as a tenant of appellee, with the was made February 4, 1920. Appellee caused understanding that if the sale was finally notice to be published February 5, 12, and 19, consummated his title was to relate back to 1920, that appellee would on February 4, the date of the agreement so that he would 1920, and from day to day thereafter until be under no obligation to pay any rent for sold, offer the real estate for sale. On March the period antedating the execution of the 18, 1920, appellant and appellee entered into deed, and that if the sale was not approved a written agreement wherein appellant agreed or if for any reason appellee was not able to to buy, and appellee agreed to sell, the real furnish a good title he would be holding estate ordered sold; appellee agreeing to fur-only for a reasonable rental. The evidence nish an abstract showing a merchantable upon this subject was conflicting. Appellee title. Soon after this contract was entered denied the existence of any conversation or into appellee delivered an abstract of title agreement upon that question. Appellant did to appellant, who delivered the same to an take possession of the land and has farmed attorney for examination. Objections were it since March, 1920, and has never paid or made to the title, and appellee, pursuant to offered to pay any rent for the use of the an agreement, caused a suit to be commenced same. and prosecuted to final decree quieting the Appellee insists that appellant is in no title to the real estate ordered sold. This position to ask the court to relieve him from decree is dated January 1, 1921. A continua- his obligation to purchase the land, while tion of the abstract showing the proceedings retaining possession and without paying or in the suit to quiet title and the recording offering to pay anything for the use of the of certain government patents and deeds farm. But in view of the conclusion we have was thereafter furnished appellant. There reached on the question as to the sufficiency was further delay; it being inferable from of the notice of sale, we need not enter into the evidence that appellant was seeking to a consideration of the effect of appellant's delay the consummation of the sale, and that possession. appellee was desirous of having the sale com- [1, 2] We must keep in mind that a sale pleted. It was later agreed that the parties by an administrator under an order and de. would meet at the office of appellee's lawyer cree of court is strictly a judicial sale. April 14, 1921. On this day appellant with Pierce v. Vansell, 35 Ind. App. 525, 74 N. E. several members of his family and his law- 554. Such sales are not only made under an yer met appellee at the office of his lawyer. order of the court, but they must be reported Other objections to the title were pointed out to and approved by the court before they beand corrected. The whole day was taken up come effective. See Emerick v. Miller, 159 in the matter. Late in the afternoon, ap- Ind. 317, 64 N. E. 28; Lawson v. De Bolt, 76 pellant's lawyer called attention to the word. Ind. 563; Maul v. Hellman, 39 Neb. 322, 58 ing of the notice of sale, wherein it was N. W. 112; Mauney v. Pemberton, 75 N. C. stated that appellee would on February 4, 219. and from day to day thereafter until sold, (3) An administrator is required to report offer the real estate for sale, and to the fact his proceedings to the court, and, if the that the first day on which this notice was court approves his acts, it adopts them as its published was February 5. Appellant on the own, and it becomes a judicial act. Noland advice of counsel refused to close the sale v. Barrett, 122 Mo. 181, 26 S. W. 692, 43 Am. or take the land unless appellant would re-St. Rep. 572.
(144 N.E.) [4, 5] The object of a notice of sale is to in- , to confirm the sale, although the terms of the form the public of the nature and condition decree may not have been strictly followed." of the property to be sold, and of the time,
In Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. place, and terms of sale. Such notices are
422, the notice of sale was published in a given for the purpose of securing bidders, and weekly newspaper on March 30, April 20, and to prevent a sacrifice of the property. This is April 27, for a sale which was to take place for the benefit and protection of the owner. April 29. The notice was not published April There is no question but that the party for 6 or April 13. The court, while holding the whose benefit the notice is given may waive omission was such as would have been sufthe omission to give notice or defects there. ficient ground for vacating the sale on proper in. If the objects to be gained by giving motion before its confirmation said: notice are attained, immaterial errors and defects will not affect the sufficiency of the
“But we do not think the omission renders notice. In Mowry v. Sanborn, 68 N. Y. 153, the sale void, or that it may be treated as void where a notice of sale by mistake was dated in any collateral proceedings or upon any col
lateral attack." April 23, 1858, instead of 1868, the court held that the mistake was obvious on inspection and did not invalidate the sale. See, also, E. 92, where the sale was not properly ad
So in Conley v. Redwine, 109 Ga. 640, 35 S. Gray v. Shaw, 14 Mo. 341.
vertised, for the reason that there were not  Where the terms of the sale or the no- four insertions in four consecutive weeks tice given are such as the court bad authority as required by statute. It was held the deto direct in the decree ordering the property fect was an irregularity that did not render sold, the confirmation of the sale by the court the sale void. See, also, Doe v. Jackson, 51 cures any irregularities in the terms of the Ala. 514; Berlin v. Melhorn, 75 Va. 639 ; sale as made or in the notice of sale. Robert. Neligh v. Keene, 16 Neb. 407, 20 N. W. 277: son v. Smith, 94 Va. 250, 26 S. E. 579, 64 Am. Horton V. Bassett, 16 R. I. 419, 16 Atl. 715. St. Rep. 723. To the same effect see Thomp
 Appellant has failed to point to any son v. Burge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369; Watson v. Tromble, 33 leged defect. This leads us to ask who could
person who might take advantage of the alNeb. 450, 50 N. W. 331, 29 Am. St. Rep. 492; raise any objection to the sale as made and Hanks v. Neal, 44 Miss. 212; Moffitt v. Moffitt, 69 Ill. 641; Little v. Sinnett, 7 Iowa, made any objection. Indeed we know of no
No creditor has
approved by the court? 324; Friedman v. Shamblin, 117 Ala. 454,
ground upon which a creditor could attack 23 South, 821.
 Where the mistake in the notice as to this sale or appellant's title derived through the date of the sale is not such as to mislead such sale. The only persons who would have the public, it is immaterial and of no effect. fects in the notice of sale would be the heirs
any right to attack the sale because of de This is especially true where the mistake is of the decedent, and they by their warranty ob ous on inspection. In Neff v. Elder, 84 deed, which they delivered to the administraArk. 277, 105 S. W. 260, 120 Am. St. Rep. 67, tor to be delivered to appellant would efit was held that the naming of the date of sale in the notice thereof as June 1, 1893, in- fectually be a bar to any action by them to stead of 1903, was a trivial irregularity which set aside and vacate the sale. If it be conwould mislead no one, and was cured by the ceded that the notice of sale was defective,
the heirs of decedent are not only barred confirmation of the sale.
from attacking the sale by their deed, but In Nevada Nickel Syndicate v. National they are parties to this appeal, and are here Nickel Co. (C. C.) 103 Fed. 391, the sale was insisting that the action of the court in remade under a statute which provided that no fusing to set aside the order approving the such sale should be had without previous pub- sale be in all things affirmed. See Rice v. lication of notice once a week for at least four
Cleghorn, 21 Ind. 84, weeks. The court in its decree directed that notice of sale be posted and published 20 lar judge of the trial court that he was not
 Appellant offered to prove by the regu- · days. It was there held that the defect was informed appellant was objecting to completcured by confirmation after notice to the de- ing the contract of sale, and that if he had fendant, the court in the course of its opinion known of appellant's objection he would not saying:
have approved the report of sale at that time. "A judicial sale is one made as a result of The refusal to permit appellant to prove judicial proceedings by a person legally ap- these facts by the regular judge is assigned pointed by the court for that purpose. It is as one of the reasons for a new trial. a sale made pendente lite. The court is the The offer to prove that the judge, if he vendor, and the person appointed to make the had known appellant was objecting to the sale is the mere agent of the court. The sale title, “would not at the time he took action is not absolute until confirmed. The order of confirmation gives the judicial sanction of the upon the report have approved the same." court, and when made it relates back to the if it had been sustained and the witness had time of sale, and cures all defects and irregu- so testified, would not have changed the relarities, except those founded in want of ju- sult. The only inference that could have risdiction or in fraud. The court has power been drawn from such testimony would have
been that the court would have postponed ac- | thorizing sale of life and entailed estates, re-
Error to Court of Appeals, Greene County. to reversible error. The same is true of the Action by Olevia May Judy and others other evidence offered. There was no error against James Trollinger and others, with in overruling the motion for a new trial. cross-petition by the defendant named. A Judgment affirmed.
judgment dismissing the petition on demur-
This was an action begun by Olevia May
Judy to partition certain land in Greene (No. 18112.)
county, Ohio. She claimed to derive her (Supreme Court of Ohio. May 27, 1924.) right to the said land as granddaughter of
one Isaac Wilson, former owner of the said (Syllabus by Editorial Staff.)
real estate. Upon June 7, 1858, the said 1. Constitutional law 93(1)-Life estates Isaac Wilson made a will touching the said 2-Act authorizing sale of life and en
land. Item No. 11 of the will was as fol. tailed estates valid.
lows: of life and entailed estates, held not to violate Isaac Wilson, the southeast quarter of section Gen. Code, $8 11925–11935, authorizing sale
"I give and devise and bequeath to my son, Const. art. 1, $ 19, providing that private No. 8, township No. 3 and range No. 8, beproperty shall be inviolate, but subservient to public welfare.
tween the Miami rivers, being the same tract
described in a patent granted to me dated Jan2. Constitutional law em 190—Act authorizing uary 22nd, 1828, to have and to hold the said
sale of life and entailed estates not retroac- land unto the said Isaac Wilson for and duri tive, as applied to will executed before its bis natural life and to his heirs in fee simple passage.
forever." Gen. Code, 88 11925–11935, authorizing sale of life and entailed estates, does not vio On October 23, 1858, Isaac Wilson made late Const. art. 2, $ 28, against retroactive the following codicil to his will: laws, as applied to will executed before pas
"I do hereby give and devise to my daughter, sage of act.
Martha Judy, wife of Joshua Judy, the tract 3. Judgment 686–Descendant born after of land in item 11 of said will mentioned and
sale of life estate held bound under doctrine devised to my son Isaac Wilson, now deceased, of virtual representation,
in lieu of and instead of the tract of land Sale under Gen. Code, $8 11925–11935, au- and house and lot in item 9 of said will menthorizing sale of life and entailed estates, held tioned and devised to her, to have and to hold valid as to granddaughter of testator not born said tract of land herein devised to the said until after sale; she being bound under doc- Martha Judy in the same manner and subject trine of virtual representation.
to the same conditions and incumbrances that
the said Isaac Wilson deceased, might have 4. Evidence 82—Guardian, waiving notice held the same under item 11 of said will."
and entering appearance in proceedings to sell life estate, presumed to have acted only
The land referred to in the will and in for his wards.
the codicil is the same land described in In sale of life estate, under Gen. Code, 88 the petition. 11925–11935, authorizing sale of life and entailed estates, where decree was entered, it
On April 4, 1859, five months after the ex. will be presumed that guardian, joined as
ecution of this will, the General Assembly such, only acted for his wards in waiving notice passed the act relating to and authorizing and entering appearance.
the sale of life and entailed estates. This
act became effective on April 4, 1859, and 5. Infants Om78(5)-Guardian ad litem unnecessary in sale of life estate under en
found in 56 Ohio Laws, p. 154, and in tailed statute,
Swan & Critchfield's Statutes, vol. 1, pp. 550, Where petition to sell life estate, under 551, and 552. The act was section 5803, Re Gen. Code, ss 11925–11935, was not contested, vised Statutes, and is now sections 11925 to appointment of guardian ad litem for infant | 11935, General Code. defendants was unnecessary, under the direct Upon March 30, 1864, the second amendprovisions of Swan & C. Rev. St. c. 43, p. atory act was passed. See 61 O. L p. 80. On 590, § 127.
April 13, 1865, the third act was passed. 6. Pleading Ow176—Reply denying receipt of See 62 0. L. p. 184. money in judicial sale held demurrable.
The testator died on April 10, 1860, after Where, in partition, defendant set up sale the act of April 4, 1859, was in full force of land under Gen. Code, 88 11925–11935, au and effect At his death he owned the
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