1. Proceedings for the partition of real estate in Indiana were
instituted in the year 1832, in the circuit court of the county
where it is situate. The record consists of an order appointing
three commissioners to divide the land between the several
proprietors, their report at the next term, and its confirmation by
the court. The report complies in its details with the requirements
of the statute, gives the boundaries of the land, sets forth with
proper description tire portion assigned to each proprietor, and is
accompanied by a plat showing the tracts assigned.
Held
that it is not a valid objection to the proceedings when they
collaterally come in question that no petition or complaint appears
in the record as the foundation of them.
2. When the recitals in the record show the jurisdiction of the
court and its compliance with the statute, the order appointing
commissioners is an adjudication affirming the sufficiency of the
application and notice, which can be questioned only in a direct
review of the proceedings in an appellate court.
3. An instrument gives color of title -- whether the grantor
acts under authority of judicial proceedings or otherwise -- if by
apt words of transfer it passes what purports to be the title, and
the grantee's possession of the lands thereunder for the period
mentioned in the statute of limitations bars the true owner's right
of recovery.
4. Where the complainant is out of possession, and the
determination in his favor is only preliminary to a decree against
the defendant for the surrender of the possession, the suit,
although in form a proceeding in equity, so nearly resembles the
common law action of ejectment as to justify the application of
that statute.
6. The court, upon the facts of this case, holds that the claim
made is stale, and without merit.
The facts are stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is a suit to quiet the title to certain real property in
the State of Indiana of which it is charged that one William P.
Hall, who died intestate in 1857, was seised in fee. By the law of
Indiana, his real estate descended to the complainants.
Page 102 U. S. 462
The premises in controversy are situated in the City of
Evansville, in that part known as Lamasco. They constitute a part
of a fractional section in the subdivision of the public lands in a
township of the state. A small stream runs through the section,
known as Pigeon Creek, on the west of which four-sevenths of the
section lie, and on the east three-sevenths. The premises in suit
are on the west side of the creek.
In 1831, the deceased William P. Hall became the owner of two
undivided sevenths of the section. In 1833, proceedings were taken
in the circuit court of the county in which the section lies, at
the instance of the possessor of an undivided interest, for a
partition of the land and an assignment in severalty of the
interests of the different owners. These proceedings resulted in a
partition, by which the interest of Hall was set apart out of that
portion of the section lying east of Pigeon Creek. If these
proceedings are valid, the claim of the complainants, as the
children and the widow of the deceased, is without foundation. He
was divested of all interest in the property in controversy several
years before his death.
The proceedings were taken under an act of the state of
February, 1831, entitled "An Act to provide for the partition of
real estate," the first section of which enacts:
"That when two or more persons are proprietors of any real
estate, any of whom are desirous of having the same divided, it
shall and may be lawful for the circuit court of the county where
such real estate may be situate, on the application of any such
person (notice of such application having been previously given by
the party so applying for at least four weeks in some public
newspaper in the state), to appoint three disinterested
freeholders, residents of said county, not related to either of the
parties, as commissioners for dividing the said estate; and said
commissioners having previously taken an oath or affirmation,
before some justice of the peace in said county, honestly and
faithfully to execute the trust reposed in them as commissioners
aforesaid, shall proceed to make division of said estate, as
directed by the court, among the owners and proprietors thereof,
according to their respective rights; which partition being made by
the said commissioners, or any two of them, and return thereof
being made by the said commissioners, in writing, under their
hands, to said court, particularly describing the lots or portions
allowed to each respective owner or proprietor, mentioning
Page 102 U. S. 463
which of the owners or proprietors are minors, if any such there
be, which return being acknowledged by the commissioners making the
same, before any one of the judges of the court aforesaid for the
said county, and accepted by the court, and entered and recorded in
the clerk's office, shall be a partition of such lands, lots, and
tenements therein mentioned."
Rev.Laws of Ind., 1838, 426.
The record of the proceedings of the partition in this case
consists of the order of the circuit court of Sept. 12, 1832,
appointing three commissioners to divide the section between the
several proprietors, and to report to the court at the next term;
their report at the next term, in March, 1833, showing the
partition made and the part assigned to each proprietor; the
confirmation of the report at that term by the court, and its
apportionment of the expenses of the partition among the
proprietors.
The order appointing the commissioners recites that it was
proved to the satisfaction of the court that David Miller (one of
the proprietors) had given due and legal notice that he would, on
the third day of the court (which was that day, September 12), make
application for the appointment of commissioners to divide among
the several proprietors thereof the fractional section.
The report gives the boundaries of the section, and sets forth
with proper description the portion assigned to each proprietor. It
complies in its details with the requirements of the statute and is
accompanied with a plat of the land showing the tract assigned.
The validity of this partition is assailed because no complaint
or petition of the applicant for the partition appears in the
record as the foundation of the proceedings, and without one it is
contended that they were void.
The statute does not in terms require the application of the
proprietor seeking a partition to be presented in writing, or, if
one be presented, to be filed among the records of the court. All
that it designates as necessary to authorize the court to act is
that there should be an application for the partition by one or
more joint proprietors, after giving notice of the intended
application in a public newspaper for at least four weeks.
Page 102 U. S. 464
When application is made, the court must consider whether it is
by a proper party, whether it is sufficient in form and substance,
and whether the requisite notice has been given as prescribed. Its
order made thereon is an adjudication upon these matters.
The recitals in the order show a compliance with the statute;
they show jurisdiction in the court over the subject. That
jurisdiction arises upon the presentation of the application,
accompanied with proper proof of previous notice of it. The order
of the court appointing the commissioners is a determination that
the application is sufficient, and that due notice of it has been
given. This conclusion is not open to collateral attack; it can
only be questioned, on appeal or writ of error, by a superior
tribunal invested with appellate jurisdiction to review it.
Voorhees v. The Bank of the
United States, 10 Pet. 449;
Thompson
v. Tolmie, 2 Pet. 157;
Comstock
v. Crawford, 3 Wall. 396.
The cases of
Lease v. Carr, 5 Blackf. (Ind.) 353, and
Shaw v. Parker, 6
id. 345, cited by complainants,
do not support their position. In the first case, the Supreme Court
of Indiana, having the proceedings in partition before it for
review on writ of error, held that the petition of the appellant
should show the extent and nature of his interest in the land, and
that he holds it in common with the defendants, whose interests, if
known to him, should also be stated; and that as the petition in
that case was silent in these particulars, and merely requested the
appointment of commissioners to divide the land, it was defective,
and the order made thereon was erroneous. But the court did not
hold or intimate that the order and subsequent proceedings were,
from the defective character of the petition, absolutely void. It
was the common case of the reversal of proceedings because of
intervening error. If not thus corrected, the existence of the
error in no respect impairs the validity and efficacy of the
subsequent proceedings, or the order or judgment thereon. The
distinction between erroneous and void orders and judgments is too
familiar to call for extended observation, and is fully recognized
not only in the courts of Indiana, but in those of every state in
the Union.
Hornor v. Doe, 1 Ind. 130;
Doe v. Smith,
id. 451;
Doe v. Harvey, 3
id.
Page 102 U. S. 465
104;
Ashley v. Laird, 14
id. 222;
Matthews, 17
id. 367;
Evans v. Ashby, 22
id. 15;
Waltz v. Borroway, 25
id. 380;
Hawkins v. Hawkins, 28
id. 67;
Comparet v.
Hanna, 34
id. 74;
Gavin v. Graydon, 41
id. 559;
Burk v. Hill, 55
id. 419;
Hays v. Ford, id., 52;
Hunter v. Burnsville Turnpike
Co., 56
id. 218;
Wiley v. Pavey, 61
id. 457. The second case,
Shaw v. Parker, also
came before the supreme court on a writ of error, and follows in
its decision
Lease v. Carr. We see nothing in either to
impeach the validity of the order of the circuit court of the
county appointing the commissioners or its order confirming their
report. Thus confirmed, the report constituted, in the language of
the statute, a partition of the lands described in it.
The complainants, treating as invalid the partition proceedings,
sue for the undivided two-sevenths of that portion of the
fractional section lying west of Pigeon Creek, and assume in their
bill of complaint that the title of the defendant rests upon a deed
made under a decree in a suit in chancery commenced against the
deceased in 1836, three years after the alleged partition. It seems
that a claim was made at that time that the two undivided sevenths
of the fractional section were conveyed by their then owner,
Nathaniel Ewing and his wife, to one William Prince, upon a
condition which had failed; that upon the death of Prince, his
estate being insolvent, the property had been sold by order of the
Probate Court to one William Daniel, for forty-five dollars, and
for the like sum had, by him and wife, been conveyed to the
deceased William P. Hall; and the suit in chancery was brought by
parties who had obtained another conveyance from Ewing and wife to
set aside the probate sale, and to compel the deceased to convey
his interest to them. The suit resulted in a decree directing the
execution of a deed of the title and interest of the deceased to
the complainants in that suit, of whom the defendant was one, by a
commissioner appointed by the court. The decree describes the two
undivided sevenths as being the same tract assigned to the deceased
in the partition proceedings. The father of the deceased was
appointed the commissioner, and he executed the deed ordered.
The complainants here assail the validity of this decree, as
Page 102 U. S. 466
being rendered without service upon the deceased, who was then a
minor under ten years of age, upon an answer filed by a guardian
ad litem, who was not authorized to waive service on his
ward. It is not necessary to examine into the validity of the
decree for this or other reasons. This deed purports to pass
whatever title the deceased possessed in the lands conveyed under
the probate sale, whether it be considered as the two undivided
sevenths of the whole fractional section, or the tract assigned to
him on the partition. It gave at least color of title. Whenever an
instrument, by apt words of transfer from grantor to grantee --
whether such grantor act under the authority of judicial
proceedings or otherwise -- in form passes what purports to be the
title, it gives color of title. The deed of the commissioner in
this case, with the return of the commissioners in the partition
proceedings, gave such color. Even should they be considered as
invalid, possession under them for the period prescribed by statute
bars the right of the true owners as effectively as possession
under the most perfect title. It is an absolute defense to the
action of ejectment. And a suit in equity, brought after that
period, for the determination of the title and for possession of
the property, will not be entertained, as it is founded on a stale
claim. As the statutes of limitations in most states, and in
Indiana among them, apply in terms only to legal remedies, courts
of equity are considered as bound by them only in cases of
concurrent jurisdiction. In other cases, they are said to act only
by analogy, and not in obedience to the statutes. Though the
present case is in form a suit in equity, and as the bill asks for
an injunction it may be so treated, it is essentially a suit to
recover the possession of the land. The complainants are out of
possession, and the defendant, or parties claiming under him, are
in possession. The determination in favor of the complainants'
title is only preliminary to a decree for the surrender of
possession. If not a concurrent remedy with the common law action
of ejectment, it so nearly resembles the latter as to justify the
rule that in such cases the statute equally applies.
The defendant and his associates in the deed of the
commissioner, or persons claiming under them, have been in
possession of the entire fractional section for over forty years,
and
Page 102 U. S. 467
during all this period have exercised acts of ownership of
almost every kind. They have laid out the land into lots, blocks,
streets, and alleys, and have made extensive improvements either
upon them or in connection with them. They have also sold parcels
to a large number of persons, who have gone into possession, and
still hold them, and have erected buildings thereon. The town of
Lamasco, laid out by them upon the land, reached a population of
over ten thousand inhabitants before it was annexed to the City of
Evansville, of which it now forms a part.
The statute of Indiana reserved to the deceased a right of
action to recover the premises for five years after he came of age,
and though he lived for ten years after that period within the
vicinity of the property and was cognizant of the possession of the
defendant and his associates and of parties holding under them, of
their claim of ownership, and of their improvements, he made no
attempt to disturb them in its possession, use, and enjoyment, or
in the sale of portions of it.
The claim now set up by the complainants is a stale one, and,
under the facts disclosed, without merit. The decree dismissing the
bill must therefore be affirmed, and it is
So ordered.