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Warthen v. Siefert et al.

than she originally conveyed to her daughter and grand Said proceedings in partition only reinvested


her with the rights she had before.

As to the ownership of the interests of two of the children of Nancy Calloway there can be no question. John's fifth interest has fallen to his children, as his only heirs. Matilda's fifth interest has gone to her grantee Elizabeth Warthen, the appellant.

Nor is any question made on this appeal, nor apparently was any made on the trial, as to the fifth interest of Benjamin. On his death it fell to his widow and three children. Two of the children and the widow conveyed their interest to the appellee Cassie. The other child, Ella, conveyed her interest to Catherine Busch; and it seems to have been taken for granted that Catherine Busch conveyed that interest to the appellee, in connection with her deed made of the twenty-four acres, August 26, 1890, as set out in finding 16. There is nothing, however, either in that or any other finding, showing directly any conveyance to any one by Catherine Busch of the interest received by her from Ella. But as the ownership of Ella's interest is not further considered. in the findings, and is not brought in question in the briefs of counsel, we will pass it.

This leaves for consideration the ownership of the shares derived from the two remaining children, George and Amanda, one-fifth each.

The third and fourth findings show that the interests. of George and Amanda were by them conveyed to their mother, Nancy Calloway, the life tenant, who thus became the owner, in fee simple, of the undivided twofifths of the forty acres.

From the twenty-fourth finding, we learn that the forty acres were of the uniform value of thirty-five dollars

per acre.

Warthen v. Siefert et al.

With this fact in mind, undoubtedly, Nancy Calloway appears to have considered that her two-fifths interest in the land was equal to sixteen acres; and the fifth and sixth findings show that she sold this sixteen acres to her daughter Amanda, and Amanda's two children, the sixteen acres being taken off the west side.

By partition and repurchase, as shown in findings seven and eight, the title to these sixteen acres again vested in Nancy Calloway, leaving her interest in all the land just the same as it was when she purchased the undivided two-fifths from George and Amanda, as shown in findings three and four.

Findings nine and ten show that she again sold this sixteen acres to the appellant. Whatever title, therefore, Nancy Calloway had in the sixteen acres passed by her warranty deed to appellant, who still owns it.

If Nancy Calloway had attempted to sell the whole forty acres, it is clear enough that her deed would convey only her interest, which, as we have seen, consisted of her life estate, and of an undivided two-fifths of the fee simple. Certainly, when she attempted to convey the sixteen acres, on the theory, apparently, that she was the full owner of it, she could also convey only her life estate in it, together with her undivided two-fifths interest in the fee simple.

A cotenant can not, by his own deed, and without the co-operation of the other cotenants, proceed to select and dispose of his own several interest in the common property. The interests of Nancy Calloway's cotenants in the sixteen acres conveyed by her remained the same after her deed as before. Her making a deed for the land could not disturb their title to the same land.

Nancy Calloway's deed to appellant for the sixteen acres off the west side of the forty acres, therefore, con

Warthen v. Siefert et al.

veyed only her life estate in that parcel, together with an undivided two-fifths interest in the fee simple.

From finding eighteen, it appears that Nancy Calloway conveyed to appellee, January 28, 1886, the undivided two-fifths of the forty acres. As this deed was later than the deed conveying her interest in the sixteen acres to appellant, as shown in findings nine and ten, it is evident that the deed for the two-fifths of the forty acres so conveyed to the appellee Cassie, covered only Nancy Calloway's interest in the twenty-four acres off the east side.

As the deed of January 28, 1886, was not placed on record until July 11, 1892, it may be that the deed of August 10, 1886, shown in finding twelve, by which Nancy Calloway again attempted to convey her undivided interest in all the land gave good title for such interest to her daughter Amanda, as a purchaser without notice of the previous unrecorded deed for the same interest to appellee.

However that may be, the title of appellee to a twofifths interest in the twenty-four acres off the east side is good also through the said deed to Amanda; for taking findings twelve, thirteen and sixteen, it is shown that, through Catherine Busch and Amanda, the title of the appellee Cassie is good to all the interest of Nancy Calloway in the twenty-four acres.

Other deeds shown in the findings did not in any manner disturb the title of appellant to her two-fifths interest in the sixteen acre tract, or that of the appellee to the same interest in the twenty-four acre tract, as derived from the remote grantor of each, Nancy Calloway.

Counsel for appellant dwell at length upon the fact found in the ninth and tenth items, that Nancy Calloway, by what is shown by finding twenty-five to have been a warranty deed, conveyed to appellant the sixteen

139 240 140 283

Shedd v. Disney et al.

acre tract; and, as finding twenty-four shows that the land was of uniform value, and the sixteen acres therefore, equal in value to Nancy Calloway's two-fifths interest, it is plausibly argued that her conveyance carried the full fee in the sixteen acres.

Nancy Calloway, however, could not herself make partition of her interest in the forty acres. In conveying the sixteen acres she could not convey a greater interest in the same than that which she possessed. There is no available error in the record.

The judgment is affirmed.
Filed Oct. 31, 1894.

No. 16,990.


QUIETING TITLE.-Necessary Party.-Judgment.-The holder of a tax sale certificate is not a necessary party to a suit by one claiming under a prior tax deed to quiet title as against the original owners of the land and a decree quieting title in such suit is not void as to him because he is not made a party.

SAME.-Transfer of Land Pending Suit.-Effect of.-Where, pending
suit to quiet title to real estate, a part of the land is transferred by
the plaintiff, the cause may, under section 271, R. S. 1881, proceed
to final judgment in the name of the plaintiff, in the same manner
as if there had been no transfer.

TAX SALE.-Nonresident Bidder.-Must Comply with Statute Relating to.
-Illegal Sale.-—A sale of land by a county treasurer to a person not
a resident of this State for delinquent taxes, unless such nonresi-
dent, before bidding, shall have filed a written agreement consent-
ing to the jurisdiction of the circuit court of the county and an ap-
pointment of a citizen of the county, as his agent, upon whom serv-
ice of process may be had in any suit connected with the sale, as
provided in section 8603, R. S. 1894, is illegal.
JUDGMENT.-Order Subsequent to Final Judgment.-Review of on Appeal.
-Withdrawal of Deposit to Secure Costs.-An order made after the
rendition of the judgment from which the appeal is taken, and

Shedd v. Disney et al.

which does not affect the judgment, such as an order allowing a party to withdraw from the clerk money deposited as security for costs, is not available on appeal.

From the Porter Circuit Court.

W. E. Pinney, for appellant.
A. D. Bartholomew, for appellees.

COFFEY, J.-This action was commenced in the Porter Circuit Court by the appellee Disney against the appellant, Shedd, and others, to quiet title to the land described in the complaint.

Shedd, in addition to filing an answer consisting of the general denial, filed a cross-complaint in which he sought, amongst other relief, to quiet title in himself to the same land. A trial of the cause by the court resulted special finding of the facts proven on the trial with the court's conclusions of law thereon, upon which a decree was entered in favor of the appellee Disney.

in a

The assignment of error calls in question the correctness of the court's conclusions of law on the facts found.

The facts in the cause necessary to a decision of the questions discussed by counsel are as follows: Both the appellant, Shedd, and the appellee Disney, claim title to the land in dispute under John Peters and Edwin Hoxie, who acquired it as tenants in common by patents from the State of Indiana. On the 12th day of February, 1878, James G. Smith purchased the land at a tax made to satisfy delinquent taxes, and, on the 19th


day of February, 1880, he received a tax deed from the auditor of Porter county. He subsequently transferred his interest to Frank H. Morrical, who instituted suit in the Porter Circuit Court to quiet the title, but the court found that the deed to Smith was insufficient to convey the title, and he thereupon took a decree to sell the land

VOL. 139-16

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