Tharp Land Law Suit

State of Indiana
Marshall County

In Common Pleas Court

Alice Tharp
vs.
Mary Ann Richards &
Harman Richards (her husband)
and Joseph W. Tharp, adults,
and Newton Tharp, John Tharp,
and George Tharp minors, and
heirs of John S. Tharp deceased

Petition for Partition

Alice Tharp, widow of John S. Tharp late of said County. Would represent to the Common Pleas Court of said County that said decedent died leaving Real Estate in said County known and described as the west half of the South West fourth of Section thirty (30) and the north west fourth of the North West fourth of section thirty one (31) all in Township Thirty four (34) north of Range four (4) East and containing in all one hundred and thirty five and 80/100 acres [later documents say 120 acres] of which he died siezed as of an Estate of Inheritance in fee simple and which is now held by your petitioner and the above named defendants as tenants in Common, said decedent having died intestate; That your petitioner as such widow is the owner in fee simple, and entitled to the undivided one third part of said Real Estate; That said Joseph W., Newton, John, and George Tharp as children and heirs of said decedent are each entitled to and owners of an undivided two fifteenths (2/15) part and the said Mary Ann Richards, also child and heir of the said decedent and Harman Richards her husband are entitled to an undivided two fifteenths (2/15) part. That said defendants are all the children and with your petitioner the only heirs of said decedent and that they the said defendants are all residents of Ross County, Ohio.

Your petitioner therefore asks that commissioners may be appointed and partition made of said premises and her proper proportion to wit "one third part of the same" may be set off to her by metes and bounds, if the same can be done without injury to the premises; and if not divisable that an order for the sale of the same may be granted - and all other proper relief.

Alice Tharp
by AC Capron
her atty

Notice appearing in the Marshall County Democrat newspaper.

State of Indiana, Marshall County
In Common Pleas Court July term, 1857

Alice Tharp,
vs.
Mary Ann Richards
Herman Richards,
Joseph W. Tharp
Newton Tharp, and
George Tharp.

Petition for Partition

The plaintiff in the above entitled cause, by A. C. Capron, her attorney, has filed in my office her complaint for Partition, and it appearing by affidavit that the defendants are all non-residents of the State of Indiana; they are therefore notified of the filing and pendency of said complaint, and that the same will be heard at the next term of the Marshall Court of Common Pleas, to be holden at the court house in Plymouth, on the third Monday of July next, and unless they appear, plead, answer or demur thereto, the same will be heard and determined in their absence.

Attest NEWTON R. PACKARD, Clerk
Marshall Court of Com. Pleas.

M.C.C.P. July term 1857 Alice Tharpe vs. Mary Ann Richards et al Subpoena for the 2nd day of July, 1857 By order of the Pltf

State of Indiana, Marshall County, ss: The State of Indiana, to the Sherriff of Marshall County, Greeting: You are hereby commanded to Summon J.B.N. Klinger to appear before the judge of the Marshall court of Common Pleas, at the court house in Plymouth, on the 2nd day of the next term thereof, to be held on the 3 Monday of July 1857 to testify, and the truth to speak, in behalf of the Pltf in a certain matter of controversy therein pending wherein Alice Tharp is plaintiff, and Mary Ann Richards et al Defendants; and this he shall not omit under the penalties prescribed by law: and of this writ make due service and return. This 20th day of July 1857. Attest N.R Packard Clerk

State of Indiana
Marshall County

In Common Pleas Court
July Term A.D. 1857

Alice Tharp
vs.
Mary Ann Richards, Harman Richards, Joseph W. Tharp, Newton Tharp, John Tharp, & George Tharp

Partition

Now comes the Plaintiff by A.C. Capron Esq. her attorney and proves to the court that the complaint was filed and that Notice was given to all of said defendants (they being nonresidents) by Publication in the Marshall County Democrat for three weeks _______ for more than thirty days prior to the first day of the present term of this court to wit: on the 21st & 28th days of May and on the 4th day of June A.D. 1857. Thereupon on motion the said defendants are each three times called come not but herein make default once ______ is given. And afterwards on the 24th day of July 1857 it being the 5th ____ day of said term the following proceedings were held in said ____ to wit.

Now again comes the Plaintiff and after hearing the evidence ______ the court on one deliberation find that all the material allegations in the said Plaintiff's complaint are true and the court also find that the said Plaintiff, Alice Tharp, is the owner in fee simple of the undivided one third part of the Real Estate in said complaint described, and that said defendants are each except Mary Ann Richards and Harman Richards, the owners in fee simple of the undivided two fifteenths part of said land and that the said defendants Mary Ann Richards and Herman Richards, her husband, are the owners of an undivided two fifteenths part of the same and the court further finds that petition ought to be made as to the portion of said land belonging to said petitioner.

It is therefore ordered and decreed by the court that partition be made of said premises as in said partition prayed for that one third part in value of said land be set off to the said Plaintiff in severalty [the condition of being held or owned by separate and individual right] and the court appoint Jacob Johnston, Anthony Haines, and Isaac P. Shively commissioners to make partition of said lands setting of the said Alice Tharp one third part of the same by proper metes and bounds and that they made report of their _____ herein at the next term of this court. And this cause is continued.

Newton R. Packard
Clerk

German [township] Marsell Co.
Received of Jacob Klinger Twenty five
Dollars and Eighty cents in full for a
Gravestone for John. S. Tharp Decesd

Jacob Knoblook

State of Indiana
Marshall County

Common Pleas Court

To the Honorable Judge of said Court.

We Jacob Johnson and Isaac P. Shively, Commissioners heretofor appointed by said Court at its July Term 1857 to make partition of the Lands owned by the Heirs of John S. Tharp late of said County deceased, and to assign and set off in severalty to Alice Tharp widow of said decedent her portion of said Lands as in the attached order set forth.

Report as follows to wit:

That having been duly sworn we proceeded on the 19th day of October AD 1857 a day fixed by us, with the Assistance of J.B.N. Klinger the Surveyor of said County to examine the premises, survey, partition, and set off the same as follows:

We set off, assign, and deliver to Alice Tharp as her fee-simple interest in the Real Estate of said John S. Tharp dec. the following described Land situate in the said County of Marshall and State of Indiana and described as the North West fourth of the North West fourth of Section thirty one (31) in Township Thirty four (34) north of Range four (4) East containing forty (40) acres more or less. To have and to hold to the said Alice Tharp her heirs and assigns in severalty forever.

All of which is respectfully submitted under our hands and seals this 20th day of October A.D. 1857.

Isaac P. Shively
Jacob Johnston

State of Indiana
Marshall County

On this 20th day of October 1857 came Jacob Johnson and Isaac P. Shirley the Commissioners above named, and in open court acknowledged the Execution and return of the above Report as their act and deed in this behalf under the attached order

Given under my hand and seal
of said Court at Plymouth
the day and year above written.

N.R. Packard, Clerk

State of Indiana
Marshall County

In Marshall Common Pleas Court
October Term AD 1857

The State of Indiana to Alice Tharp and J.B.N. Klinger

State of Indiana John Tharp Decd'
Tharp and Klinger Administrators

Citation

At this time by order of the court a citation is ordered to issue against said administrator commanding him to appear on the first day of the next term of this court and show cause of why . . . said Estate should not be settled.

Witness the Clerk and seal of said
Court this 8th day of December 1857
Newton R. Packard Clerk

State of Indiana
Marshall County

Matter in the estate of John S. Tharp deceased.

Jacob B. N. Klinger the administrator of said estate in answer to the citation issued against him says that the estate cannot be finally settled at the present time of this Court because a portion of the sale notes are a yet uncollected, and as soon as the same are collected the same will be settled. That the claims against the estate are paid in full except $23 which is going to the widow and the costs of Court. Thereupon he asks that he may have further time in the matter. All of which is respectfully submitted.

Subscribed and
Sworn to before me
this 16th day of January 1858.

A.C. Capron
Notary Public

J.B.N. Klinger
Administrator

Notice in the Marshall County Democrat newspaper.

STATE OF INDIANA, MARSHALL COUNTY

In the Common Pleas Court July Term A.D. Filed. Estate of John S. Tharp. Alice Tharp and J.B.N. Klinger, Administrators. Notice is herey given, that accounts current will be presented to the court at its July Term, 1858, for examination and final settlement of the estae of John S. Tharp, deceased.

Attest: N.R. Packard, Clerk

State of Indiana
Marshall County

Jacob B.N. Klinger Administrator of the Estate of John S. Tharp late of said County deceased reports the following final settlement account.

While amount of appraisement of personal property as per inventory on file $527.83. Difference between appraisement and sales $00.56.

Account Currents		Debit	Credit
He is chargeable as per inventory on personal property.		$527.83
With interest accrued on sales notes.		10.80
He claims the following credits difference between appraisements and sales by sales less these appraisements			.56
For goods taken by widow			276.62
For money paid widow on personal dower			23.38
For money paid on claims against the estate as follows as per vouchers
John B. Kitch [clerk of estate sale]	No.1		2.05
John P. Rose [appraiser of estate]	No. 2		1.50
Wm J. Burns	No.3		3.00
Alice Tharp	No.4		43.41
County Taxes on Lease	No.5		6.99
County Taxes on Lease	No.6		6.81
County Taxes on Lease	No.7		4.02
Jacob Knoblock [tombstone]	No.8		25.80
John Coil [auctioneer of estate sale]	No.9		5.00
John Stoffer [coffin]	No.10		10.00
David Hazzard	No.11		9.00
John F. Parks [doctor]	No.12		3.00
R. Cornwall	No.13		3.53
D. R________	No.14		2.50
Jacob Johnson [appraiser of estate]			1.50
Court Costs (Corbaley)	No.15		7.20
Court Costs (Packhard)	No.16		7.96
Attorneys fees (Capron)	No.17		5.00
Printing	No.18		1.50
Notice distribution	No.19		1.50
Fees charged by Administrator			50.00
Total		$538.63	$501.83
Balance in the hands of Administration for Distribution		$36.81

The administrator says that Alice Tharp the widow of the decedent was appointed Co-Administratrix with him but that she soon afterward removed to the state of Ohio where she has ever since resided and the whole labor of the management of the estate and the settlement thereof had fallen on him. That the property of the Estate was situate about twelve miles from his residence and he has spent a great deal of time in attending to the Estate matters. That over seventy five dollars of the sale notes proved to be worthless and he has answered for the same out of his own estate that the debt of the decedent and costs of settlement are all fully paid so far as they have come to his knowledge and he asks that his charge for services may be allowed as he thinks the same is less than the services were actually worth and that himself and his co-administratrix may be discharged and that the above account current contains a full and complete statement of all the estate of the decedent for which his is chargeable and the credits to which he is entitled.

Subscribed and Sworn
to before me this
21st day of July 1858

NR. Packard Clerk

J.B.N. Klinger
Administrator

NOTICE OF DISTRIBUTION

State of Indiana Marshall County. At the July term 1858, of the Court of Common Pleas, of Marshall County, after final settlement of the estate of John Tharp deceased about the sum of thirty-six dollars were found remaining for distribution among the Heirs. Said heirs are therefore notified to appear on the first day of the next term of said Court and prove their Heirship and receive their distribution there.

N.R. PACKARD, Clerk

State of Indiana
County of Marshall
In Circuit Court
May Term 1884

Complaint to Quiet Title

Joseph W. Thorp, John O. Thorp, George W. Thorp, and the heirs of Mary A. Richards (formerly Mary A. Thorp) deceased, viz. Edgar A. Richards, Sarah A. Richards, Francis M. Richards, Ella Richards, and Elizabeth Richards; her children, minors by Harmon Richards their next _____, and said Harman Richards surviving husband of said Mary A. Richards.

vs.

Simon Hanes

The above named plaintiffs complain of said defendant and say that they, the plaintiffs, are owners in fee simple, as tenants in common, of the East Twenty (20) acres of the North West fractional quarter of the North West quarter of Section Thirty one (31) Township Thirty four (34) North of Range Four (4) East in the county of Marshall and State of Indiana; that said defendant now holds possession of said land without right and since the 17th day of May 1882 has unlawfully kept the plaintiffs out of the possession thereof to their damage in the sum of Six Hundred Dollars for which they pray judgment together with the possession of said land and all other proper relief.

T.J. Payne
Samuel Parkin
Attys for Ptffs.

Second Paragraph ~ Said plaintiff for a second paragraph of complaint against the defendant say that they Joseph W. Thorp, John O. Thorp, and George W. Thorp are the sons of John S. Thorp, deceased, and that the plaintiffs Edgar N. Richards, Sarah A. Richards, Francis M. Richards, Ella Richards, and Elizabeth Richards are the sons and daughters of Mary A. Richards, deceased who was a daughter of said John S. Thorp, deceased, and that the plaintiff Harman Richards is the surviving husband of said Mary A. Richards, deceased: that said John S. Thorp died intestate on the 16th day of July 1854 at Marshall County, Indiana, the owner of certain lands therein situate one tract or parcel thereof being the East Twenty (20) acres of the North West fractional quarter of the North West quarter of section Thirty one (31), Township Thirty-four (34) North of Range Four (4) East and leaving surviving him as his heirs, his widow Alice Thorp, who was his second wife and by whom he had no children, or the descendants of children, living at the time of his death, and Joseph W., John O., and George W. Thorp, and Mary A. Richards, deceased who were his children by a former wife, during his marriage with whom he acquired and owned said land; that after the death of said John S. Thorp, his said widow Alice Thorp, on the 20th day of October 1857 had set off to her as her interest in the lands of her deceased husband by commissioners in partition in North West quarter of the North West quarter of section Thirty-one (31), Township Thirty four (34) North of Range Four (4) East of which the twenty acres herein first described forms a part; that said Alice Thorp on the 10th day of November by her warranty deed conveyed said land to one John Stiver; that said land was conveyed and reconveyed until October 8, 1875 at which time this defendant received it from Jane Reed and Albert Reed her husband by warranty deed to him, that on the 17th day of May 1882 said Alice Thorp died intestate upon the happening of which event these plaintiffs say they became entitled to the possession of said land as tenants in common and the owners of the fee therein. But they say that said defendant now is and has been in possession of said land using, enjoying, and occupying the same and withholding the possession thereof from plaintiffs ever since they became entitled thereto on the 17th day of May 1882 as heretofore mentioned, that the rents and profits of said land from that time to this are worth Six Hundred Dollars; that said defendant claims to be the owner in fee simple of said land under and by virtue of the deed to him heretofore set out which claim is a cloud upon the plaintiffs title to said land and adverse to their ownership thereof.

Wherefore plaintiffs pray judgment against defendant for Six Hunded Dollars, and that their title to said land be quieted and that they be granted all other legal and proper relief.

T.J. Payne
Samuel Parker
Attys for Pltffs.

State of Indiana
Marshall County

In Circuit Court

Joseph W. Thorp et. al
vs.
Simon Hanes

The defendant for answer to the complaints herein says. He denied each and every allegation thereof.

And by way of counter claim and seeking affirmative relief herein the defendant says.

That heretofore and prior to the 20th day of October 1857 one John S. Thorp was the owner in fee simple of the following parcels of land to wit, the east half in the Northwest quarter of the north west quarter of Section Thirty one (31) in Township Thirty-four (34) N. of Range Four (4) E in said Marshall County, Indiana and he held the same by chain of recorded title from the _____ _____ _____ successive grantors direct to him and the same was ___ the land held and owned by him at the time of his death. That said John S. Thorp died intestate on or about the ___ day of ___ 185_, seized in fee of said land and the same was of less value than Ten Thousand dollars. That he died leaving as his heirs him surviving Alice Tharp his widow, and four children only all there living to wit: Joseph W. Thorp, John O. Thorp, George W. Thorp and Mary A. Thorp, afterwards Mary A. Richards by marriage. That about one year after the death of said John S. Thorp his said Widow Alice Thorp brought an action in the Common Pleas Court of the County of Marshall and State of Indiana against the children above named heirs of said John S. Thorp and for a partition of said Real Estate and in her complaint in said action she claimed to be the owner in fee-simple of the one third part in value of said real estate that all said children to wit Joseph W. Thorp, John O. Thorp, George W. Thorp and Mary A. Thorp were made defendants to said action and duly served with process. That on or about the 20th day of October 1857 the said cause was duly tried and determined by said court and the court found the decreed therein that said Alice Thorp was the owner in fee-simple of the one third part in value of said land, and that she was entitled to have said land set off to her in severalty in fee-simple forever, and the court decreed partition of all said lands and commissioners were duly appointed a commission issued to them and they partitioned set off and assigned to said Alice Thorp the North West quarter of the North West quarter of said Section Thirty one Town Thirty four N. of Range four E. as the one third part in value of said Entire tract, in severalty and fee-simple forever and the report of the commissioners therein was duly approved and confirmed by the court, and the record and judgment of the court in said case stands unreversed and unappealed from and the same as it appears of record in the clerks office of this county and all the records and papers in said Co. are now referred to for greater certainty. And defendants says that on the date of the rendition of said judgment and decree all the defendants therein except one to wit Mary A. Tharp were of full age. That she became of age within three years after the date of said judgment and decree and from that time henceforth no action of any kind has been instituted by any of said defendants to said action to change modify or set aside said judgment and decree and for more than twenty five years the same heirs so remained of record without any action whatever being taken by the defendants therein to set the same aside to modify or change the same. That the defendents in said action brought by Alice Thorp were the identical persons now prosecuting this action except those newer as heirs of Mary A.Richards, and they are her heirs and claim only through her. That said Alice Thorp took possession of the land so set off to her by virtue of said decree, and held and possessed the same until the 10th day of November 1863 when she sold and by her Warranty deed conveyed the same to one John J. Stiver who immediately took possession thereof and since then said land has been and remained in the ownership and occupancy of the successive granters through regular and recorded chain of conveyances down to this defendant who purchased the East Twenty acres of said 40 acre tract of one June Reed and Albert Reed her husband on the 8th of October 1875 and this defendant says that the plaintiffs are slandering the title to his said land and are giving it out in the neighborhood that they own the same and have brought suit and are endeavoring to disturb his enjoyment of the premises and he now prays that the court will quiet the title thereto to him and forever enjoin the plaintiffs from claiming any title or interest therein and for all other proper relief.

A.C. Capron
J.D. for Deft

State of Indiana
County of Marshall

In Circuit Court
March Term 1885

Cause No. 6659

Complaint to
Quiet Title

Bill of Exceptions

Joseph W. Thorp, John O. Thorp, Geoge W. Thorp, and the heirs of Mary A. Richards (formerly Mary A. Thorp) Deceased, viz: Edgar A. Richards, Sarah A. Richards,
Francis M. Richards, Ella
Richards, and Elizabeth Richards, her children, minors by Harmon Richards their next ____ and said Harmon Richards surviving husband of said Mary A. Richards

vs.

Simon Hanes

Be it remembered that on the trial of the above entitled cause before the Honorable Isaiah Conner, Judge of said Court, on the 23 day of January 1885, that bring the 35th Judicial day of the December Term 1884 of said court it was agreed in open court before said Judge, by said plaintiffs and said defendant that the following facts should be taken as proved by the court and that they are the facts in said cause to wit:

The defendent is in possession of and claims to be the owner in fee simple of the following tract of land in the county of Marshall and State of Indiana to wit: The East Twenty (20) Acres, of the North West Quarter, Fractional, of the North West Quarter of Section Thirty-one (31) Township, Thirty-four (34) North of Range Four (4) East, which is the same land that the plaintiffs seek to recover and have their title to quieted in this action. The plaintiffs, except Harmon Richards, are the children and grandchildren of John S. Tharp who died intestate of said County of Marshall and State of Indiana, on the 16th day of July 1854, the owner in fee simple of certain lands situated in said county, of which the land above described that is the subject of this suit is a part. The plaintiff Harmon Richards is the surviving husband of Sarah A. Richards a daughter of said John S. Thorp, the sister of the plaintiffs named Thorp, and the mother by said Harmon Richards, of the other plaintiffs named Richards.

At his death said John S. Thorp left surviving him, the plaintiffs Joseph W. Thorp, John O. Thorp, George W. Thorp, and Sarah A Richards, since deceased, who were his children by his first wife and his widow Alice Thorp who was his second wife and by whom he had no children or the descendants of children living at the time of his death; but he did have one child by said Alice which died in infancy and before he, said John S. Thorp, died.

It was during his marriage with his first wife that said John S. Thorp acquired the land of which he died seized.

Said Alice Thorp, died intestate on the 17th day of May 1882. This suit was commenced on the 28th day of April 1884. The land which is the subject of this suit is a part of the land that was set off to said Alice Tharp, by partition proceedings held in the common pleas court of said county in the year 1857, as her interest in the lands of which John S. Thorp, died seized, as his widow. Said Alice Thorp never remarried.

It is further agreed, that the North West Fourth of the North West Fourth of Section No. 31, Township No. 34 North of Range Four (4) East, in Marshall County, Indiana, of which the land which is the subject of this suit was a part ______ from the United States by Otho Means on November 16th 1850. Tract Book Recorder's Office of said County, No. 1 page 106.

That Otho Means and wife conveyed said land by Warranty Deed for $335 to John S. Thorp on September 17th, 1852. Said deed was recorded on Nov. 14th 1853 in Deed Record Book "J" page 202.

That in a suit for partition by Alice Thorp widow of John S. Thorp vs. Mary Ann Richards and others in the Common Pleas Court of said County as the October Term 1857, said land was set off in fee simple to Alice Thorp, said land being the one third in value of the lands of which said John S. Thorp died seized, Partition Record of said county page 138. But this agreement is not to control the effect of the Record of said Partition suit which will hereafter be introduced in evidence by said defendant.

That said Alice Thorp by her Warranty Deed, dated November 10th 1863, for $300 conveyed said land to John Siter, said Deed was recorded on January 20th 1864 in Deed Record "_" page 326.

That John J. Siter and wife by their Warranty Deed dated February 23rd 1864, conveyed said land to Peter Pixler for $300. Said Deed was recorded on March 2nd, 1864 in Deed Record "_" page 430.

That Peter Pixler and wife by their Warranty Deed, dated February 21st 1867, conveyed said land to William D. Sipe for $______. Said Deed was recorded on March 11th 1867 in Deed Record "W" page 299.

That William L. Sipe and wife by their Warranty Deed dated January 17th 1871 conveyed said land to Albert Reed for $300. Said Deed was recorded January 21st 1871 in Deed Record 3 page 567.

That Albert Reed by his Warranty Deed dated December 31st 1874, conveyed said land to Jane Reed for $600. Said Deed was recorded May 8th 1875 in Deed Record ___ page _____.

That Jane Reed and Albert Reed her husand conveyed the part of said land being the land described in plaintiff's complaint to Simon Hanes, the defendant on October 16th, 1875 for $500. Said Deed was recorded October 29th 1875 in Deed Record 14 page 56.

That said Alice Thorp and the grantees in the several deeds of conveyance above described have been in the uninterrupted possession of said land since the date of the decree of said partition proceedings and defendant is now in possession and the plaintiffs to further sustain the issues on their part produced the witness Major G. Walford, who being duly sworn testified as follows:

I live in Bourbon Township, Marshall County, Indiana, in the vicinity of the land in dispute. Have known said land for thrity years. I remember when Hanes bought the land of Reeds. The general rumor there in the neighborhood where Hanes lived was that the Thorp heirs claimed to own the land.

And here the plaintiffs rested.

Defendant's Evidence - And the defendant to support the evidence on his part introduced the following evidence. He read in evidence all the papers and the record in the case of Alice Thorp vs. Mary Ann Richards, Harmon Richards, Joseph W. Thorp, Newton Thorp, John Thorp, and George Thorp for partition tried and determined at the October Term of the Common Pleas Court of Marshall County, Indiana consisting of

1. The complaint which is in these words (here insert).

2. The affidavit of A.C. Capron for the publication of a non-resident notice which is in these words (here insert).

3. The nonresident notice with the proof of publication thereto attached which notice and proof of in these words (here insert).

4. The answer of C.H. Reeve, Guardian ad litem of the minor defendants in said cause which is in these words (here insert)

5. The order of the court to the commissioners to make partition the appointment of the commission and the oath of the commissioners thereto attached, which is in these words (here insert).

6. The report of the commissioners in partion which report is in these words (here insert).

The Defendant also read in evidence the entire record, order and decree of said Common Pleas Court in said cause, which record, order, and decree are found in the Partition Record in the Clerk's Office of said court at page 138 and on and which and in thse words (here insert).

And this was all the evidence given in the cause.

And thereupon the said Judge trying said cause took the same under advisement, and on the 26th day of January 1885, being the 37th day of said term of said Court, he announced the finding and rendered in the record, whereupon said plaintiffs in open court gave notice of their intention to file a motion for a new trial, and on January 29th 1885 being the 41 Judicial day of said term of said court they filed their motion for a new trial as heretofore set out in the Record, which said motion was overruled, and the plaintiffs excepted and prayed an appeal to the supreme court, which was granted on the conditions heretofore set out in the record, and sixty days time was given to prepare and file a bill of exceptions.

And the said plaintiffs now here tender this their bill of exceptions and pray that the same may be signed, sealed and made part of the record, which is done this 23rd day of March 1885.

Isaiah Conner

Judge of the Marshall Circuit Court

The State of Indiana in the Supreme Court, November Term, 1885. On the 11th day of May, 1886, being the 146th Judicial day of said November Term, 1885.

Judges

Appeal from the Marshall Circuit Court

Hon William E. Niblack,
Chief Justice
Hon. George V. Howk,
Hon. Byron K. Elliott
Hon Allen Zollars,
Hon Joseph A.S. Mitchell

IN THE CASE OF

Joseph W. Thorp, et. al.
vs.
Simon Hanes

Came the parties by the Attorneys, and the Court being sufficiently advised in the premises, gave the following opinion and judgment, pronouced by Zollars, J.

Appellants claim to be the owners of, and by this action seek to quiet the title to the real estate in dispute, and to recover rents and profits. Appelle also claims to be the owner of the real estate and by a cross-complaint, ask that his title be quieted as against any claim by Appellants. The court below decided in his favor, and rendered a decree accordingly.

The case comes here upon the evidence which, in brief, is as follows: John S. Thorp, a resident of Marshall County, and the owner of 120 acres of land in that county died intestate in 1854, leaving Alice Thorp, his widow, and five children surviving, as his only heirs at law. The widow Alice, was a second wife. Of this marriage one child was born, but died before the death of its father, John S. Thorp. The five children were the issue of a former marriage. The land was acquired by John S. Thorp during his first marriage. Appellants are the children and grandchildren of John S. Thorp.

In 1857, the widow Alice instituted an action in the Common Please Court of Marshall County for a parition of the land, and made defendants thereto the said children of John S. Thorp, some of whom were minors.

The land of which that in controversy is a part was set off to said Alice as her one third interest in the lands of her deceased husband. In 1863, she sold, and by warranty deed conveyed the land so set off to her to John T. Stiever. The land has since been sold several times and finally, the portion in controversy, came into the possession of Appellee and has remained in his possession, under a warranty deed, on the 16th day of October, 1875. The widow Alice died intestate in May 1882.

Since the land was set off to her she and her grantees have been in the uninterrupted possession of it. Although the general rumor in the neighborhood has been that the Thorp children claimed that it belonged to them. In her petition for partition, the widow Alice alleged, amongst othe things, that as the widow of John S. Thorp, she was the owner in fee simple, and entitled to the undivided one third part of the lands described as having belonged to her deceased husband, and she asked that her "proper proportion to wit, one third part of the same," might be set off by metes and bounds . . . and for all other proper relief."

The children of Thorp being non-residents of the State, notice of the pending action was given by publication.The affidavit for publication attached to the complaint was made by the Attorney for the widow and contained the statement only, that the children, naming them, were non-residents of the state.

In the published notice it was stated, that the widow had filed her petition for partition. No mention was made, whether in the published notice, or in the affidavit, that any question of title was involved in the action.

After all the defendants had been defaulted, the minor children, by guardian ad litem, filed an answer in which it was stated, that they knew of no reason why the prayer of the widow's petition should not be granted and in which they asked, that by reason of their tender years, the court should protect their interests.

Upon the hearing of the case, preliminary to the final decree, the court found, that the widow Alice was the owner in fee simple of the individual one third part of the real estate. In the final decree, and in appointing the commissioners to make partition, it was ordered and decreed, that the one third portion in value of the land should be set off to the widow in severalty.

In their report, the commissioners stated that they had set off to the widow Alice, forty acres of the land "as her fee simple interest to have and to hold by the said Alice Thorp her heirs and assigns in severalty forever."

This report was by the court accepted, approved, and confirmed, and it was ordered that partition should be made as in said report set forth.

Appellee rests his claim upon the record in the partition proceeding and claims, that in the proceeding, all of the rights and title of appellants to the land in controversy were adjudicated, and that that adjudication is a bar to any claim of title that they may now make.

This contention cannot be maintained. There having been no child of the second marriage living at the death of the father, it is conceded in argument, and settled by our cases, that the widow, as the second wife, took no greater interest in her husband's lands than she would have taken had no child been born of that marriage. Our cases also settle the rule in such case to be that the land, which at the death of the husband descends to the second wife, at her death, descends to the children of the husband by his former wife.

The primary object of an action in partition is, not to create or vest a new title, nor to settle conflicting titles, but to sever the unity of possession and allot the respective shares.

[A four page discussion of precedents set by similar cases].

Upon the foregoing authorities we conclude, that the judgment in the partition proceedigs did not, and does not, bar the children of John S. Thorpe from setting up the title which they have acquired by descent from the deceased widow. Taking the record of the proceedings in that case as a whole, it is apparent that the sole purpose of the action was to procure a partition, and not to quiet title, by defeating the right of inheritance in the children from the widow for the portion that might be set off to her.

If that was a case to quiet title, then either party might have had a new trial as of right under the statute. But it must be apparent upon an examination of the record, that neither party to the action could have insisted up on a new trial as a matter of right.

[More discussion.]

The commissioners had no authority to settle titles, and hence, what they said in their report upon that subject is of no consequence. It may be further observed, that the affidavit for, and the published notice clearly indicate, that the action was simply an action for partition.

It results from our conclusions above, that so far as anything is known by the record, appellants are entitled to the real estate in controversy, and that the trial court erred in overruling their motion for a new trial.

The judgment is reversed at appellee's costs, and the cause is remanded with instructions to the court below to sustain appellant's motion for a new trial and to proceed with the case in accordance with this opinion.