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(125 N.E.)

That defendants, Perry D. Perkeypile and Estella Perkeypile, on the 30th day of April, 1912, conveyed by warranty deed to plaintiff, the Globe Mercantile Company, the real estate described in plaintiff's complaint, consisting of 120 acres of land in Knox township, Jay county, Ind. That the plaintiff paid the defendants therefor the sum of $90 per acre, and plaintiff took said lands subject to a mortgage in the sum of $3,200, with accrued interest thereon, and also subject to all taxes and assessments falling due after May, 1912.

That plaintiff about the 1st of June, 1913, paid to William S. Helm the sum of $166 in full satisfaction of a judgment rendered against one Jeremiah Williams on September 16, 1904, in favor of said Helm, and recorded on said date in judgment docket No. 11, at page 49, in the office of the clerk of the circuit court of Jay county, Ind., in the sum of $364.56. That plaintiff also paid to William S. Hervet and John Clark on June 13, 1913, the sum of $87 for the release of a judgment rendered against Jeremiah Williams on the 20th day of August, 1906, in favor of said Hervet and Clark in the sum of $122.64, which was duly entered of record on said date in judgment docket No. 11, at page 50, in the office of the clerk of the circuit court of Jay county, Ind. That plaintiff also incurred certain expenses in the amount of $48 in compromising and discharging said judgments and also in securing the release of two judgments against the said Jeremiah Williams in favor of the Cory-Leamon Company and John D. Rathvon, both of which were duly recorded in judgment docket No. 11, in the office of the clerk of the Jay circuit court, and which were rendered and recorded prior to the 25th day of November, 1908. That plaintiff also expended the sum of $75.34 in paying assessments duly adjudged against said lands in the Hamilton Heller drainage proceedings in the Jay circuit court of Jay county, Ind., the amount of $20.58 of which fell due prior to June 1, 1912.

That Jeremiah Williams and Scarber Williams were married more than 30 years ago, and lived together as husband and wife until Scarber Williams died intestate on the day of August, 1906, the owner in fee simple of the 120 acres of real estate in question, and leaving surviving her, her husband, Jeremiah Williams, and several children.

That on November 20, 1905, the said Scarber Williams purchased said lands of William C. Horn, and executed a mortgage, her said husband joining therein, upon said lands to secure notes in the sum of $1,940, given as part of the purchase price of said lands.

That after the death of Scarber Williams intestate in August, 1906, and on the 3d day of January, 1908, Albert Brunson was duly appointed as administrator of her estate, and duly qualified and acted as such administrator; that said decedent not having any personal estate said administrator, on the 6th day of January, 1908, filed his petition to sell said real estate to pay the balance due upon said mortgage notes and other indebtedness of said decedent, all of which indebtedness was incurred subsequent to her said marriage, and averred in said petition that said real estate was of the value of $8,000. That Jeremiah Williams was made a party defendant to said petition, and filed his answer consenting to said sale.

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That William S. Helm, William C. Hervet, John W. Clark, the Cory-Leamon Company, and John D. Rathvon, judgment creditors of Jeremiah Williams, as aforesaid, nor either of them, were made parties to said petition, nor did summons or other notice issue to them; that said parties, or either of them, did not have any notice or knowledge of said proceedings to sell said real estate, nor did they or either of them appear in person or by attorney in said proceedings, or in the subsequent proceedings leading up to the final settlement of said estate and the discharge of said administrator.

That said administrator was ordered to sell all of said lands, including the interest of Jeremiah Williams therein, and that the same be sold free from all liens except the taxes for 1908.

That pursuant to said order said administrator sold said land for the sum of $6,938, to the defendants, Perry D. Perkeypile and Estella P'erkeypile, on the 25th day of November, 1908, and said defendants, having complied with the terms of the sale, said administrator duly executed and delivered a deed to said defendants for said real estate.

That said administrator received from the sale of said real estate the sum of $6,937 and the amount of $55.97, as interest on deferred payments, which he distributed as follows: To the State Bank of Pennville in payment of purchase-money mortgage assigned to said bank by W. C. Horn, $4,951.52; to appraisers of real estate, $1; funeral expenses, $125.01; taxes, $136.68; costs, $27.29; E. E. McGriff, attorney fees, $125; to Frank Williams, $500; to clerk on Frank Williams' claim, $384.65; services of administrator, $125; to Jeremiah Williams, $200; to clerk for Jeremiah Williams, $415.82 -total $6,991.97.

And that thereafter, on the 12th day of March, 1908, the final report of said administrator was finally approved and he was finally discharged.

From which facts the court concludes as follows:

(1) That the judgments of record existing against Jeremiah Williams on November 25, 1908, in favor of William S. Helm, William C. Hervet, and John Clark, the Cory-Leamon Company, and John D. Rathvon, at the time said real estate was conveyed to said defendants by said administrator, were not valid liens against said real estate or any part thereof, and were not valid liens against said real estate or any part thereof on the 30th day of April, 1912, when said real estate was conveyed by said defendants to plaintiff.

(2) That plaintiff take nothing by his complaint that defendants recover of and from the plaintiff their costs in this action paid, laid out, and expended.

On the conclusions of law the court rendered judgment that the plaintiff take nothing by its suit, and that defendants recover their costs of plaintiff. From this judgment appellant appealed, and has assigned as error that the court erred in overruling its demurrer to appellees' second paragraph of answer, and in stating each of its conclusions of law. The errors assigned present the questions: Were the judgments mentioned in the special

finding of facts liens on any portion of the real estate in question? And if they were liens, were such liens divested by the sale of said real estate to pay the debts of the decedent?

[1] Section 3016, Burns 1914, provides that if a wife dies testate or intestate, leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage.

does not relieve the real estate from liability for the debts. If, however, such wasting is a wrongful one by the administrator, he would perhaps be liable on his bond. But if the assets are wasted or destroyed without fault of the executor or administrator, or by reason of a decrease in the value of such assets, or the insolvency of the administrator or executor and their sureties, the loss falls on the estate. Henry's. Probate Law, § 188. See Nettleton v. Dixon, 2 Ind. 446; Fiscus v. Moore, 121 Ind. 547, 23 N.

[4] If the administrator make a misapplication of the proceeds of the sale of the real estate, this malfeasance cannot be charged against the purchaser. 11 R. C. L. Executors and Administrators, § 418.

Scarber Williams died intestate, the owner of the real estate in question. On the hap-E. 362, 7 L. R. A. 235. pening of that event her husband, Jeremiah Williams, by virtue of said statute, became seized immediately of an undivided one-third part thereof. But his interest was subject to the mortgage executed thereon by his wife to secure a portion of the purchase money thereof, and in the execution of which he had joined. By reason of that fact the court had authority to order the whole of the real estate sold for the purpose of paying the mortgage indebtedness. Hampton v. Murphy, 45 Ind. App. 513, 86 N. E. 436, 88 N. E. 876; Wiliams v. Wood, 60 Ind. App. 69, 107 N. E. 683.

[2] As a general rule, land upon the death of an ancestor passes to the heirs or devisees, who are immediately vested with the title thereto and the right of possession, and are entitled to the full enjoyment of such land, and at common law the title to real property vested absolutely in the heirs upon the death of the ancestor, and was not subject to be made assets for the payment of debts, but by the force of the statute in this state, the real estate of an intestate is as completely subject to his debts as is his personal estate, and even though the personal estate is wasted by the administrator, the purchaser of the real estate from an heir is not protected.

In one case it is said:

[5] It is not within the power of a third person to impair or embarrass the personal representatives of a decedent in the settlement of the estate by dealings with the heirs upon the supposition that their interest is of a certain or fixed character. A purchaser from an heir acquires precisely the same right and interest which the heir has from whom he takes a conveyance and nothing more. He is bound to know that, until the estate is finally settled, the sale of the real estate may become necessary for the payment of debts. Such purchaser takes the property subject to the debts of the ancestor, and by reason of a sale by the administrator his title may wholly fail. Henry's Probate Law, § 189.

[6, 7] A judgment creditor of an heir has no greater rights than the heir, and if the title of the heir is divested by the sale of the real estate to pay debts, the rights of the judgment creditor are also divested. Where a testator has devised real estate, charging it with the payment of his debts, his personal representative, if the personal estate be insufficient, may obtain an order to sell the lands; the devise being no obstacle whatever. Bennett v. Gaddis, 79 Ind. 347.

In Koons, Adm'r, v, Mellett, 121 Ind. 585, 23 N. E. 95, 7 L. R. A. 231, it is held that a judgment obtained against a devisee of real estate, which is afterwards sold by the administrator, with the will annexed, in pursuance of the terms of the will, the transcript having been properly filed, becomes a lien on the land, and follows the proceeds of the sale of such land into the administrator's hands, binding it to the same extent that it bound the land, but such lien is a general

"The statute not only gives the administrator the right, but makes it his duty, when the personal property is not sufficient, to convert the real estate into assets for the payment of debts. Where this right is asserted, and the lands are sold and conveyed, the title to the land which descended to the heir is completely divested. And although the heir may have sold and conveyed the land, the conveyance made by an administrator under the order of the court is not in any wise affected or impaired by the previous incumbrance or conveyance by the heir. This conclusion logically results from the fact that, under the statutes of our state the real and personal property of an intestate descend to the same persons and in the same pro-lien, and is subject to all the equities existportions, and both are equally chargeable with ing in favor of the estate represented by the payment of his debts, with the exception the administrator, and confers on the judgthat the personal estate must be exhausted first." Fiscus v. Moore, 121 Ind. 553, 23 N. E. 364, 7 L. R. A. 235.

[3] The wasting of the personal assets of the decedent by his executor or administrator

ment creditor no greater rights as against such estate than those possessed by the devisee.

In Fiscus, Adm'r, v. Moore, 121 Ind. 547, 552-553, 23 N. E. 362, 364 (7 L. R. A. 235) the court says:

(125 N.E.)

"While it is quite true, as is contended, that | real property of an intestate to pay his inupon the death of the ancestor the title to real debtedness deprives the heirs of their estate estate descends to and vests in the heir, the in the premises, since their rights are inferifact must be kept in view that, unlike the or to the demands of the creditors. As the rule at common law, the heir, according to the right of an heir to a share of his ancestor's terms and policy of the statutes in this state, does not take an absolute title. Pending the set- real property is extinguished by an administlement of the estate of his ancestor, the descent trator's sale of the premises to pay the inis subject to be intercepted, and the title di- debtedness of the decedent, so, too, such sale, vested whenever the personal representatives when properly petitioned for and regularly make it appear that the sale of the land is nec- conducted, must necessarily destroy the lien essary to make assets for the payment of the upon such land of any judgment rendered ancestor's debts. The statute not only gives against the heir. Nichols v. Lee, 16 Colo. 147, the administrator the right, but makes it his duty, when the personal property is not sufficient, to convert the real estate into assets for the payment of debts. Where this right is asserted, and the lands are sold and conveyed, the title to the land which descended to the heir is completely divested."

26 Pac. 157.

In the case of Nichols v. Lee, supra, the court says that

"Though under the Colorado statutes the surviving husband inherits half of the estate of his wife, he takes it subject to the payment of her debts, and where the estate is insolvent the In Weaver v. Gray, 37 Ind. App. 35, 76 purchaser of land belonging thereto under an N. E. 795, it was decided that where the de-execution against the husband acquires no title ceased childless wife received, as a gift from as against a creditor of the wife, who purchases her father, lands, one-third thereof descends at the administrator's sale." to the husband and two-thirds to such father, subject to the payment of her debts, and such husband, father, or her executor or administrator may maintain a suit for partition thereof. The court in that case says that

the conclusion in no wise conflicts with the

rule declared in Herbert v. Rupertus (1903) rule declared in Herbert v. Rupertus (1903) 31 Ind. App. 553, 68 N. E. 598. In that case

it was held that one-third of the fund deriv

ed from the sale of a deceased wife's real estate, which under the statute descended to the surviving husband, was subject to the

payment of a mortgage indebtedness upon the real estate, in which he joined and by the mortgage promised to pay. The mortgage was a lien upon the real estate, and the lien followed and attached to the fund in the hands of the administrator.

[8] The devisee or heir of real estate takes the same subject to the indebtedness of the deceased. Baker v. Griffitt, 83 Ind. 411; Moncrief v. Moncrief, 73 Ind. 587; Weakley v. Conradt, 56 Ind. 430; Moore v. Moore, 155 Ind. 261, 57. N. E. 242.

[9] The land involved was sold for the payment of the purchase-money mortgage. The husband had no interest in this as against said purchase-money mortgage, and it follows that his judgment creditor could have a lien on no greater interest than he had, or right to collect his debt out of any interest except the interest of the husband. This interest was only the right to the balance of the fund after the payment of the purchase-money mortgage. Shirk v. Thomas, 121 Ind. 148, 22 N. E. 976, 16 Am. St. Rep. 381; Butler v. Thornburg, 131 Ind. 237, 30 N. E. 1073; Vandevender v. Moore, 146 Ind. 44, 44 N. E. 3; Butler v. Thornburgh, 141 Ind. 152, 40 N. E. 514; Sarver v. Clarkson, 156 Ind. 316, 59 N. E. 933; Denton v. Arnold, 151 Ind. 188, 51 N. E. 240; Overturf v. Martin, 170 Ind. 308, 84 N. E. 531.

The purchaser of such land under execution against the husband is not a necessary party to proceedings to sell the land for the payment of the wife's debts.

[11] There is nothing in the statute (Burns 1914, § 2854), defining the requisites of a petition to sell real estate for the payment of decedent's debts, which requires the holder of a judgment against the heir or devisee of real estate to be made a party to such proceeding.

Burns 1914) provides that-
Another section of statute (section 2860,

"Any person not a party to such petition may, upon proper petition, be admitted as a party to the proceedings, and set up any interest in or lien upon the land, and have the same heard and determined."

[12] A petition by an administrator to sell real estate to pay his decedent's debts, which substantially complies with section 2854, Burns 1908, is sufficient. Hampton v. Mur phy, 45 Ind. App. 513, 86 N. E. 436, 88 N. E. 876.

[13] In the instant case it was not necessary to make persons having judgments against the surviving husband, Jeremiah Williams, parties to the proceedings to sell the real estate, and they were not entitled to any notice of such proceedings. It is not contended that the proceedings were irregular, or that the law pertaining to the sale of real estate by administrators was not fully complied with.

Our conclusion is that the judgments named in the special finding of facts in this case were not liens on the real estate conveyed by appellees to the appellant at the time of such conveyance, and that the payment of such judgments by appellant was a voluntary payment, and that appellant has no right of action against appellees for the recovery of [10] A sale by an administrator of the the amounts so paid. It follows from what 125 N.E.-3

we have said that the court did not err in overruling appellant's demurrer to the second paragraph of the answer of appellees and in stating its first conclusion of law.

It appears from the finding of facts that the appellant took his conveyance of the real estate subject to all taxes and assessments falling due after May, 1912, and that the appellant expended the sum of $75.34 in paying assessments duly adjudged against said real estate in the the Hamilton-Heller drainage proceedings in the Jay circuit court, of which $20.58 fell due prior to June 1, 1912. This drainage assessment was a lien on the real estate conveyed by appellees to appellant, and by the terms of the warranty of appellees the appellant is entitled to recover from appellees the sum of $20.58, being that amount of said assessments which fell due prior to June 1, 1912.

The court, therefore, erred in stating its second conclusion of law. The judgment is reversed, with instructions to the trial court to restate its second conclusion of law in appellant's favor as to said amount of $20.58, paid on that portion of the Hamilton-Heller drainage assessment which fell due prior to June 1, 1912, with interest on said amount from the date of payment, and to render judgment thereon in conformity therewith.

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took the car from its owner, or either of them, shot and killed such owner, and as a part of the transaction took possession of the car, the taking of the car was larceny, etc., held not erroneous, as misleading the jury, leaving them in doubt and uncertainty as to the law, or as requiring explanation.

5. RECEIVING STOLEN GOODS (2)—APPLI

CABILITY OF INSTRUCTION TO ISSUES.

In a prosecution for receiving a stolen automobile, instruction on conspiracy between defendant and another, pursuant to which they induced and procured the two men who stole the particular automobile to steal cars and bring them in to sell, held not inapplicable to the issues.

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2. RECEIVING STOLEN GOODS 7(6)—VARI- of the jury is not sustained by sufficient evi

ANCE BETWEEN AFFIDAVIT AND EVIDENCE.

In a prosecution for receiving stolen goods, there is no variance between the affidavit, charging larceny or theft of the goods, and the evidence, showing that they were taken by robbers, since every robbery includes a larceny. 3. RECEIVING STOLEN GOODS 8(3) — SUFFI

-

CIENCY OF EVIDENCE OF OWNERSHIP.

In a prosecution for receiving a stolen automobile under affidavit charging the ownership to have been in a certain Greek taxi driver, evidence held to show ownership of the automobile in the taxi driver, though he was dead at the precise time of the robbery, having been shot by one of the robbers.

dence.

[1] In support of the proposition that the verdict is contrary to law, it is claimed by appellant that it appeared from the evidence that the automobile was taken by robbers, and not taken in the commission of a larceny thereof. Upon this point it is sufficient to say that, even so, every robbery includes a larceny. The affidavit charges a larceny, and the material allegations thereof are established, even though the transaction might also be termed a robbery.

[2] The above statement also disposes of the proposition that there is a variance, in that the affidavit is not supported by the 9(2) CER- evidence, for the same reason.

4. RECEIVING STOLEN GOODS
TAINTY AND NONMISLEADING CHARACTER OF

INSTRUCTIONS.

In a prosecution for receiving a stolen automobile, instructions that if the robbers, who

[3] It is further asserted that the evidence does not support a conviction upon this affidavit, for the reason that the ownership is, by the affidavit, charged to have been in one

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

Manos at the time the automobile was taken;, of Manos was by the witness and Larrison whereas, the evidence shows that said Manos buried in the creek bottom; that in the evewas dead at said time, and appellant also ning of the next day they had a conversation claims that the allegation in the affidavit with appellant, Marco, at his residence; that appellant knew said automobile to have that Marco said the car was "too big for been stolen, at the time he is charged to him to handle"; that the witness then told have purchased, concealed, and aided in the Marco that the driver had been "knocked concealment thereof, is not supported by the out" by the other fellow, meaning Larrison; evidence. and that appellant remarked that he did not like to take any chances, that he would rather have a smaller car, but told the witness to see him the next morning; that appellant on the next morning told the witness he would give him and Larrison $100 down and $150 in 30 days, "if nothing came up against the car"; that defendant told Chatten to go and see Rhodes, and then to come back; that defendant told the witness to go up one street, and he would go up another street, and they would meet in Rhodes' place of business. At Rhodes' place of business a check was written by Rhodes for $100, and that the witness asked Rhodes for a bill, or receipt, whereupon defendant, Marco, said "that would throw too much suspicion on us in case we are caught," and that their word was good. Appellant, Marco, thereupon gave to Rhodes a check for $50, at which time witness asked Marco if they were going fifty-fifty on the deal, and Marco laughed, and said, "Yes."

A statement of the facts appearing in the evidence relating to this matter will aid in the solution of the two propositions last referred to, and also in determining whether there was error in the giving of instructions No. 42 and 8 by the court on its own motion. Dewey Chatten and Virgil Larrison, who are the persons charged with having stolen the car in question, testified for the state, and it appears from their testimony, which is very strongly corroborated, that they were young men engaged in the business of stealing and disposing of automobiles. They had, within two weeks prior to the theft charged in this case, stolen two Ford automobiles and had sold them to the defendant, Marco, and one Rhodes, the witness stating that the first car was stolen in Terre Haute, driven to Washington, Ind., and sold to Charles Rhodes; that they first negotiated with appellant for the sale of that car, and that at appellant's place of business met said Rhodes, and that said Rhodes proposed to trade for said car, if Marco did not; that they did make a trade with said Rhodes, receiving a Marmon car and $50 in cash; that they stole a second car in Terre Haute, took it to Washington, Ind., going to defendant's house, where defendant, Marco, told them he had a car he would trade them. This was done, and they again received $50 in cash. Appellant did not ask the young men where they got either of these cars. He did not say anything to them, when negotiating about the first car, as to whether he knew it had been stolen. After he traded for the car, he asked if they had a bill of sale for it, and was told that they did not have, but made out a bill of sale as they sat in the car in front of the defendant's place of business. At the time they were negotiating about the first car, defendant said he "knew how we got the car, and after that we went ahead." Witness further stated that he and Larrison stole a third car, a Dodge Bros. touring car, a fully equipped car; that they got it from a Greek taxi driver named Andrew Manos, whom they met in Terre Haute; that they hired him to take them for a drive to Nine-Mile Island; that they thus traveled to a place known as Peach Orchard, and after they had made a turn, and started back, Larrison, who sat in the rear seat, started to "hold up" Manos, and just as he did that Manos shifted the gears, the car jolted, and the gun was accidentally discharged, and killed the taxi driver; that thereafter the body

The witness asked Marco and Rhodes i? they wanted them to bring another automcbile, and Marco said, "Yes;" and witness asked if it would be all right to bring one Saturday, and Marco said, "les;" whereupon Rhodes spoke up and said that "would be too soon," but Marco said it would be all right, and either Rhodes or Marco said to "bring Fords, as they are easier to dispose of"; that Marco had said in one of the conversations, in connection with one of the earlier trades, that "Ford cars were easier to get away with than big cars." Rhodes and Marco were asked if it would be all right to bring two cars, and, after a conversation between Marco and Rhodes, Marco said it would be all right, and to come after night, and to bring them to his home, and to come in without riding around through the streets of Washington; but, if they did come in the daytime, to come to his place of business.

Other witnesses testified as to the existence of the two checks above referred to, and to the fact that appellant stopped payment on the $50 check he gave to said Rhodes. Appellant and said Rhodes denied most of the facts testified to by said Chatten, in so far as Chatten recounted transactions and conversations had with himself. It was for the jury to weigh this testimony, and, having done so, the jury returned a verdict against appellant, and, on the point made, we cannot say that the verdict is contrary to the evidence.

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