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(56 Ind. App. 17) SCHAEFER et al. v. HINES et al. (No. 7,897.)1

reduced to a judgment, that the lien attaches, if at all. As the judgment in this case was not rendered until after the second marriage, it is immaterial that the debt was (Appellate Court of Indiana, Division No. 2. contracted while Mrs. Herring was a widow,

Oct. 10, 1913.)

LIO IMPROVEMENTS - ASSESSMENTS - FORE-
CLOSURE OF LIENS.

and had the power to alienate her land, since 1. MUNICIPAL CORPORATIONS (§ 567*)-PUBthe contraction of the debt did not alienate the land in any way. Any other construction would permit that to be done by indirection which is forbidden directly. At the time the execution against the land was issued the right of alienation had been suspended. It is certain that the sale on execution could convey no greater interest in the real estate than was owned by Mrs. Knowles at the time of the sale. Her interest was a fee, determinable upon her death during coverture. McAdams v. Bailey, 169 Ind. 518, 527, 82 N. E. 1057, 13 L. R. A. (N. S.) 1003, 124 Am. St. Rep. 240; Miller v. Noble, 86 Ind. 527.

Under Burns' Ann. St. 1908, § 8714, declaring that in suits to foreclose assessment liens the proceedings need not be set forth or referred to at length, but it shall be sufficient was finally let, the name of the street improved, to state in the complaint the day the contract the amount and date of the assessment, that it is unpaid, and a description of the property on which it is levied, and that no defense shall be allowed on the ground of any irregularity in the proceedings making, ordering, or directing such assessment, it is no ground for a demurrer that the complaint does not allege with certainty that the notice of the adoption of the declaratory resolution, providing for the proposed payment, was published in accordance with the provisions of the act.

[Ed. Note.-For other cases, see Municipal Dig. § 567.*] Corporations, Cent. Dig. §§ 1276-1281; Dec.

According to Miller v. Noble, supra, the purchaser of the real estate at the sheriff's sale acquired title during the life of Mrs. Knowles; but upon her death during cover-2. MUNICIPAL CORPORATIONS (§ 567*)-—PUBture the real estate descended to appellants, LIC IMPROVEMENTS - ENFORCEMENT OF ASher husband's children by her first marriage. SESSMENT LIENS. This disposes of appellee's contention that he has acquired title by adverse possession for over 20 years, since, if the sale upon execution gave good title during the life of Mrs. Knowles, his possession had been adverse only since her death in 1909. This action was instituted February 2, 1910.

Where the complaint, in an action to enwho owned the property, and her husband, who force an assessment lien against both the wife, claimed an interest therein, alleged that plaintiffs gave 15 days' notice in writing to said defendant that unless payment was made foreclosure would be begun is not sufficient under Burns' Ann. St. 1908, § 8721, requiring the service of such notice upon the owner of the property affected by the assessment and providing that it shall contain a description of the property covered by the lien, the amount thereof, and the name and address of the owner, not showing that notice was served on the wife nor that the notice contained the required matters. Corporations, Cent. Dig. §§ 1276-1281; Dec. [Ed. Note.-For other cases, see Municipal Dig. § 567.*]

3. MUNICIPAL CORPORATIONS (§ 561*) - AsSESSMENT LIENS-ENFORCEMENT.

that in actions to foreclose assessment liens it Burns' Ann. St. 1908, § 8714, providing shall not be necessary to refer to the proceed

[7] Appellee further contends that this action is barred by the statute of limitations. It is settled in this state that, where a widow remarries, her children by her former husband have no interest in the real estate which vests in her from the former husband before the time of her death during her subsequent marriage. Irey v. Mater, 134 Ind. 238, 248, 33 N. E. 1018; Erwin v. Garner, 108 Ind. 488, 9 N. E. 417; Pence v. Long, 38 Ind. App. 63, 74, 77 N. E. 961. Appellants, therefore, had no interest which they could as-ings at length but shall be sufficient to state in sert in this real estate before the death of the complaint the day on which the contract their mother in 1909, and had no right of ac- proved, the amount and date of the assessment, was let, the name of the street or highway imtion in respect to the real estate before that that it is unpaid, and a description of the proptime. The statute of limitations could not erty, will not excuse one, suing for the enforcebegin to run before their right of action ac-giving of the 15 days' notice to the owner rement of an assessment lien, from alleging the crued. Irey v. Mater, supra; Haskett v. Maxey, supra; Bell v. Shaffer, 154 Ind. 413, 424, 56 N. E. 217; Rozell v. Cranfill, 43 Ind. App. 298, 85 N. E. 792, 86 N. E. 864. As the action was begun within the time allowed by statute after the death of appellants' mother, appellee's contention that the action is barred by the statute of limitations is untenable. The court erred in overruling the demurrers to the answer and cross-complaint.

The judgment is reversed, with instructions to the court below to sustain the demurrers to the answer and cross-complaint of appellee, and for further proceedings not inconsistent with this opinion.

quired by section 8721 before the commencement of an action.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1268; Dec. Dig. § 561.*]

-

-

4. MUNICIPAL CORPORATIONS (§ 567*)-EN-
COMPLAINT
FORCEMENT OF ASSESSMENT –
SUFFICIENCY-CONDITIONS PRECEDENT.
Where the giving of 15 days' notice to the
owner is made by statute a condition precedent
to a suit for the foreclosure of an assessment
lien, the complaint must allege the performance
of that condition which is a condition precedent,
even though it only affects the maturity of the
right of action.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1276-1281; Dec. Dig. § 567.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

5. PLEADING (§ 193*) - DEMURRER - DEFECTS LAIRY, C. J. This action was begun by DEMURRABLE.

If the fact that the action is prematurely brought appears on the face of the complaint, the defect may be attacked by demurrer, otherwise it must be shown by answer.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. § 193.*]

6. PLEADING (§§ 34, 193*)-CONSTRUCTIONCOMPLAINT PRESUMPTIONS-DEMURRER.

appellees in the Huntington circuit court for the purpose of enforcing a lien of a sewer assessment against the lands of appellant Hannah Schaefer. The complaint alleges that Martin B. Schaefer claims some interest in the land as the husband of Hannah Schaefer, and he is made a party defendant to answer as to such interest. There was a judgment foreclosing the lien as against both defendants.

[1] The first two assignments of error call

It will be presumed that the pleader stated the facts most favorable to his cause of action; consequently, where the complaint in an action for the enforcement of an assessment lien failed to state the service of 15 days' notice of fore-in question the sufficiency of the complaint. closure on the owner required by Burns' Ann. St. 1908, § 8721, it will be presumed that no such notice was served upon the owner and the defect may be reached by demurrer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 52, 66-74, 425, 428-435, 437443; Dec. Dig. §§ 34, 193.*]

7. APPEAL AND ERROR (§ 1031*)-HARMLESS ERROR-PRESUMPTIONS.

Errors will be presumed prejudicial unless otherwise shown by the record; consequently the overruling of a demurrer to a complaint for the enforcement of an assessment lien, which did not show that the notice required by statute had been given the owner, must be held prejudicial where the record failed to show the giving of such notice.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]

8. MUNICIPAL CORPORATIONS (§ 522*)-PUBLIC ASSESSMENTS - PAYMENT IN INSTALLMENTS.

As Burns' Ann. St. 1908, § 8718, providing that any person desiring the privilege of paying his assessments in installments shall file the written agreements as specified within 30 days after allowance, does not extend the time for the making of the election to pay in installments in favor of those who may file petitions to have their assessments reduced, one filing a petition for the reduction of his assessment cannot pay in installments unless action is had thereon within the 30 days provided and the election is duly filed.

The first objection urged against the complaint is that it does not allege with sufficient certainty that the notice of the adoption of the declaratory resolution providing for the proposed improvement was published in accordance with the provisions of the act. Section 8714, Burns 1908, contains the following provisions in reference to suits to forclose assessment liens created under the provisions of our statute: "It shall not be necessary in any such foreclosure suit or suits to set forth or refer to the proceedings at length or specifically, but it shall be sufficient to state in such complaint the day on which the contract was finally let, the name of the street or highway improved, the amount and date of the assessment, that the assessment is unpaid, and a description of the property or lot upon which the assessment was levied."

The publication of the adoption of the preliminary resolution as provided by statute was one of the steps in the proceeding leading up to the ordering of the improvement and the making of the assessment. The statute quoted relieves the plaintiff from setting out these proceedings at length and in detail in his complaint. The same section of statute further provides that, in suits to foreclose, no defense shall be allowed upon the ground of

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1229; Dec. Dig. any irregularity in the proceedings making, 522.*]

ordering, or directing such assessment. It 9. MUNICIPAL CORPORATIONS (§ 493*)-As- thus appears that it was the intent of the SESSMENTS-REDUCTION OF ASSESSMENT. Legislature that the collection of the assessWhere an assessment for municipal im- ment should not be defeated on account of provements is reduced upon report of the commissioners, such report is final, and an entry in any defects or irregularities in the proceedthe order book of the municipality is not neces-ings leading up to it. The complaint is not sary to make it effective. open to the objection thus pointed out.

[Ed. Note.-For other cases, see Municipal [2, 3] The only other objection made to Corporations, Cent. Dig. §§ 1091-1093, 1160-the complaint is that it fails to allege with 1165; Dec. Dig. § 493.*]

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

sufficient certainty that personal written notice had been served upon the owner of the property affected by the assessment 15 days Action by William R. Hines and others before the commencement of the suit to foreagainst Hannah Schaefer and others for the close the lien in accordance with section 8721, enforcement of the lien of a sewer assessment Burns 1908. The complaint alleges: "That against defendants' land. From a judgment said plaintiffs have given 15 days' notice in foreclosing the lien, defendants appeal. Re-writing to said defendant that, unless this versed and remanded, with directions to said assessment was paid within 15 days, suit sustain the demurrer to the complaint with to foreclose this said assessment would be inleave to amend.

Sumner Kenner and John V. Sees, both of Huntington, for appellants. Emmett O. King, of Huntington, for appellees.

stituted." The complaint discloses that notice was served upon one of the defendants, but it does not designate which one. The statute requires that such notice shall be served up

on the owner of the property affected by the | ris v. Scott, 6 Ind. App. 18, 32 N. E. 103, 865. assessment, and that it should contain a description of the property covered by the lien, the amount of the lien, and the name and address of the owner of the same. Section 8721, Burns 1908. The allegation of the complaint quoted fails to show a compliance with this section of the statute with reference to the giving of the notice. It fails to show that it was served upon the defendant Hannah Schaefer, the owner of the land covered by the assessment, and it also fails to show that the contents of the written notice served were such as to conform to the terms of the statute.

On behalf of appellee it is contended that section 8714, Burns 1908, specifies all of the allegations necessary to constitute a sufficient complaint to foreclose an assessment lien, and that, as this section does not specify or require any allegation with reference to the notice under consideration, no such allegation is necessary. We cannot agree with counsel for appellee in this contention. The portion of the section upon which counsel relies is quoted in full in a former part of this opinion. The sentence quoted must be construed as a whole; and when the latter part of this sentence, which specifies what allegations shall be sufficient, is construed in connection with the preceding part, it becomes apparent that the meaning intended is that the allegations mentioned shall be a sufficient statement of the proceedings leading up to the making of the assessment. It was the evident purpose of the Legislature to relieve the plaintiff in such a suit from the necessity of setting out in detail in his complaint every step in the proceeding leading up to the fixing of the assessment, but it was not the intention to relieve him of the duty of making any other allegations necessary to show a right of recovery.

[4] Where a complaint seeks the recovery of money which is payable only upon the performance of a certain condition or upon the happening of a certain contingency, the complaint must show that the condition has been performed or that the contingency has happened. Washington Tp. v. Bonney, 45 Ind. 77; Thompson v. Doty, 72 Ind. 336; Baker v. Slater, 14 R. I. 531; Tooker v. Arnoux, 76 N. Y. 397. It is true that a defect of this character only shows that plaintiff's right of action was not mature at the time the complaint was filed.

[5] If an action is prematurely brought and the fact does not appear on the face of the complaint, the complaint will be held sufficient, and the facts showing that the action is prematurely begun must be called to the attention of the court by an answer in abatement; but, if the defect appears on the face of the complaint, it may be reached by demurrer. Middaugh v. Wilson, 30 Ind. App. 112, 65 N. E. 555; Walter A. Wood & Co. v.

[6] It was the evident intention of the Legislature to make the giving of this notice a condition precedent to the bringing of the suit to foreclose the lien. The plaintiff is supposed to have stated the case as strongly in his favor as the facts would warrant. Cannon v. Castleman, 162 Ind. 6, 69 N. E. 455; Malott v. Sample, 164 Ind. 645, 72 N. E. 245. His failure to state in his complaint that a notice in the form specified by the statute was given as the act directs creates a presumption against him that no such notice was given. The defect is therefore apparent on the face of the complaint and can be reached by a demurrer. While not expressly deciding the question here presented, the Supreme Court has treated such an allegation as necessary to the sufficiency of the complaint to foreclose an assessment lien. Low v. Dallas, 165 Ind. 392, 75 N. E. 822; Ross v. Van Natta, 164 Ind. 557, 74 N. E. 10.

[7] The evidence is not in the record, and we have no means of knowing whether the notice as required by the statute was given to the owner of the land affected by the assessment. An erroneous ruling is presumed to be prejudicial to the party against whom it is made unless the record affirmatively shows that it was harmless. The court erred in overruling the demurrer to the counplaint, and for that reason the judgment must be reversed.

[8, 9] One other question is presented by the record which may possibly arise upon another trial of this case, and for that reason we should determine it on this appeal. Appellant asserts that the court erred in sustaining the demurrer of plaintiff to the first paragraph of defendant's answer. In substance this answer avers that, within ten days after the final assessment roll was approved by the common council of the city of Huntington, the plaintiff filed her petition in the Huntington circuit court praying that the assessment against her lands be reduced as excessive, and that said court appoint three disinterested appraisers who filed their report in said count on January 25, 1907, by which the assessment against a plaintiff's land was reduced from $514.75 to $350. This paragraph of answer further avers that the court did not enter judgment on this report until May 10, 1907, and that within ten days thereafter plaintiff presented to the city council and treasurer a copy of such assessment and its confirmation and offered to pay the amount in installments, but that the treasurer refused to permit her to sign the waiver and refused to enter the installments of the assessments upon the tax duplicate. Upon these facts appellant contends that she had a right to pay her assessment in installments, and that no suit can be maintained to foreclose the lien for the full

Under the provisions of section 8718, Burns 1908, any person desiring to exercise the privilege of paying his assessment in installments is required to sign and file the written agreement specified in this section, and this must be done within 30 days after the allowance of the final estimate. The paragraph of answer under consideration does not show by any averment when the final estimate for the improvement was made or that the defendant filed or offered to file the agreement within the time provided by statute. There is no provision of the statute extending the time for making the election to pay in installments in favor of those who may file petitions to have their assessments reduced. If, at the time the commissioners appointed by the court filed their report reducing the assessment against plaintiff's property, 30 days had not elapsed after the final estimate, the plaintiff, without doubt, might have filed her election to pay such assessment in installments after such report and within such 30 days. The report of the commissioners reducing the assessment is final and conclusive, and the order book entry is not necessary to make it effective. City of Indianapolis v. State ex rel., 172 Ind. 472, 88 N. E. 687. The demurrer to the first paragraph of appellant's answer was property sustained.

The judgment is reversed, with directions to sustain the demurrer to the complaint, with leave to amend.

(54 Ind. App. 139)

PHIPPS v. SAPPENFIELD. (No. 8,251.) (Appellate Court of Indiana, Division No. 2. Oct. 7, 1913.)

interest owned by each, the covenant of warranty must be construed as a joint covenant, and extends to the entire land conveyed, not merely to the interest owned by each one.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 46; Dec. Dig. § 46.*] 4. COVENANTS (§ 42*)-CONSTRUCTION—“WarRANT"-INCUMBRANCES.

tle includes a covenant against incumbrances. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 43; Dec. Dig. § 42.*

A covenant in a deed to "warrant" the ti

For other definitions, see Words and Phrases, vol. 8, pp. 7393-7396; vol. 8, pp. 7832, 7833.] 5. ESTOPPEL ($ 32*)-BY DEED-COVENANT AGAINST INCUMBRANCES.

Where an heir joined with the other heirs in jointly conveying and warranting the title to certain land to the surviving spouse of the intestate, such heir thereby became estopped to asclaim against the estate existing at the time the sert, against any or all of the land conveyed a deed was executed, notwithstanding the claim was afterwards adjudicated against the estate. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 81; Dec. Dig. § 32.*1

Appeal from Circuit Court, Washington County; Wm. H. Paynter, Special Judge.

Petition by Emanuel S. Sappenfield, as administrator of Catherine M. Phipps, for an order directing the sale of certain real estate to pay the debts. From a judgment for the petitioner, Robert A. Phipps, surviving husband of Catherine M. Phipps, appeals. Reversed and remanded, with directions.

Fred L. Prow and Fippen & Fippen, all of Salem, for appellant. Frank L. Driskell, of Campbellsburg, and Mitchell & Mitchell, of Salem, for appellee.

IBACH, J. Appellee, as administrator of the estate of Catherine M. Phipps, brought a petition in the court below for an order directing him to sell certain described real es

1. EXECUTORS AND ADMINISTRATORS (§ 241*)—tate with which to pay the debts of her estate. COLLATERAL ATTACK FRAUD CLAIM AGAINST ESTATE. The validity of a claim against an estate having been duly adjudicated by the court in a proceeding for its allowance, it could not be collaterally attacked in a proceeding to sell real estate to pay the claim, and the court did not err in sustaining motions to strike out those portions of the answer in such proceeding which alleged

that the claim was fraudulent.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 827, 849; Dec. Dig. § 241.*]

2. ESTOPPEL (§ 32*)-BY DEED-AFTER-ACQUIRED TITLE. The rule that one who conveys land by warranty deed is estopped from asserting an afteracquired title is not strictly applicable where a grantor with warranty of an interest in land asserts a claim against the same which existed before the deed was executed, as it was not an after-acquired claim, though it was changed into a judgment after the execution of the deed. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 81; Dec. Dig. § 32.*]

3. COVENANTS (8 46*)-CONSTRUCTION-JOINT OR SEVERAL COVENANTS.

Where certain heirs to whom land descended as tenants in common joined in conveying and warranting the same, without restriction to the

Appellant, the surviving husband of Catherine M. Phipps, answered in four paragraphs, and parts of his second and third paragraphs of answer and all of his fourth paragraph of answer were stricken out on motion of appellee. It is urged that the court erred in sustaining these various motions to strike out. these various motions to strike out.

The answers aver, in substance, that William F. Phipps, the son of Catherine M. Phipps, as her heir at her death became the owner in fee simple of the undivided onesixth part of the land described in the petition, and appellant as her husband became the owner in fee simple of one-third; that William F. Phipps, and the other children and heirs, after the death of their mother conveyed to appellant by warranty deed for a valuable consideration their two-thirds interest; that after appellant had paid the legal debts of the estate William F. Phipps procured an administrator to be appointed, and filed a fraudulent claim against the estate; that he was the only claimant, and the petition was brought to sell the same real estate which he had conveyed and warranted

[3] But appellee claims that, if an estoppel exists, it extends only to the one-sixth interest which was the property of William F. Phipps, and such was the view of the trial court.

to appellant; that he concealed his claim | lands conveyed, the mere adjudication that until after appellant had paid all the legal his claim was valid against the estate would debts; that William F. Phipps and the other not change the effect of the estoppel worked heirs by the execution of the deed waived and by the deed. intended to waive all claims which they had against the estate; that William F. Phipps and the other heirs when they joined in the deed knew that the real estate therein conveyed constituted their mother's entire estate; that at the time of the execution of said deed there were no claims filed or pending against said decedent or her estate, or any claims of any kind except such as were waived and intended to be waived by the execution of said deed; that William F. Phipps was estopped from asserting any interest in or right to any part of said real estate after the execution of said deed of warranty.

[1] The court sustained motions to strike out from the various answers the allegations that the claim of William F. Phipps was fraudulent, for the reasons that the claim had been disallowed by the administrator, had been tried in court, and evidence heard and judgment rendered in favor of William F. Phipps. The validity of the claim against the estate having been thus duly adjudicated, it could not be collaterally attacked upon the ground of fraud in this proceeding, and the court did not err in sustaining the motions to strike out from the several answers the allegations relating to fraud in the claim of William F. Phipps.

The court held that the answer in estoppel as to the one-third interest of Robert A. Phipps and the one-sixth interest of William F. Phipps was good, but sustained the motion to strike out the parts which averred an estoppel as to the other one-half interest. By his decision the court found that appellant's one-third interest which he took as surviving husband, and the one-sixth interest which had been the property of William F. Phipps, were not subject to sale to pay William F. Phipps' claim, but that the remaining one-half interest was subject to sale to satisfy such claim.

[2] Appellant asserts the general rule that one who has conveyed lands by a warranty deed is estopped from asserting an after-acquired title, applies and cites such cases as Locke v. White, 89 Ind. 492, Randall v. Lower, 98 Ind. 255, and Johnson v. Bedwell, 15 Ind. App. 236, 43 N. E. 246. This rule is not strictly applicable here, for the reason that the claim of William F. Phipps was not an after-acquired claim, but existed at the time the deed was made, and was at that time a claim for which the land was liable, and since the deed was made the claim has been merely changed in form to a judgment. by the execution of the warranty deed he lost the right to assert the claim against the

If

By the terms of the deed the grantors "convey and warrant" to Robert A. Phipps the undivided two-thirds of the real estate which is described in the administrator's petition to sell. There are no restrictions whatever upon the covenant of warranty. The terms "convey and warrant" must be construed as a joint covenant of warranty, which includes a covenant against incumbrances. Ragle v. Dedman (1912) 98 N. E. 367. "Where two or more make a joint contract, each is liable to the promise for the whole debt or liability. Each obligor who is bound at all is legally liable for the whole undertaking." Elliott, Contracts, § 1479. It was held in Ragle v. Dedman, supra, that, where tenants in common conveyed land by a joint warranty deed, they were all liable on their covenant of warranty for an incumbrance which affected the interest of only one tenant. Conversely, where, as in the present case, all the heirs, tenants in common, joined in conveying the land and making a joint covenant of warranty, such warranty extends on the part of each warrantor, or to the entire land conveyed, and not merely to the interest which he himself owned.

[4, 5] William F. Phipps is not in the same situation that he would be if he had conveyed his interest by a separate deed. By entering into a joint deed with the other heirs he warranted title to the entire land conveyed by the deed; this covenant of warranty included a covenant against incumbrances, and by making the deed he was estopped from asserting as against all or any part of the land a claim which he held at the time, and which he afterward established in court as a valid claim against his mother's estate. The court erred in striking out the parts of the answers which showed William F. Phipps estopped as to all the land conveyed by the deed, and in holding that he was estopped only as to his one-sixth interest, and that the remaining half interest was subject to sale to satisfy his claim. No part of the land was subject to such sale.

For this error the judgment is reversed, and the cause remanded, with instructions to overrule appellee's various motions to strike out parts from appellant's answers which show William F. Phipps estopped from asserting his claim against any part of the land described in the petition, and for further proceedings consistent with this opinion.

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