Burford v. Burford
| Decision Date | 31 October 1979 |
| Docket Number | No. 1-878A226,1-878A226 |
| Citation | 396 N.E.2d 394,182 Ind.App. 640 |
| Parties | Miles G. BURFORD, Plaintiff-Appellant, v. William B. BURFORD, III; Helen Danner Garrigues; H. Burford Danner; Albert E. Metzger Wysong; Merchants National Bank & Trust Company, As Trustee of the Non-Marital Deduction Trust, pursuant to the Estate of Alfred L. Piel; Adele P. Meyer, As Trustee of the Elmer W. Piel Trust; Eleanor Marie Meyer and Adele P. Meyer; American Fletcher National Bank and Trust Company, Trustee of the Herbert C. Piel Living Trust; Maude Hovey Piel; Frederick C. Melcher; Theodore E. Berg; John M. Kitchen, As Trustee pursuant to the Estate of William E. Berg; Herbert C. Piel, Trustee of the Selma P. Brikmeyer Trust, Lester P. Koelling; Allison P. Koelling; Alger P. Wysong; Mary Louise (Schwier) Schuler; Vera Eleanor (Schwier) Schuler; Carl W. Piel, Jr.; Helen S. Hegeman; Jane and John Doe, Unknown Devisees of Alma Piel Sudbrock, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Stephen B. Cohen, Foss, Schuman & Drake, John D. Norcross, Chicago, Ill., David F. McNamar and William S. Ayres, Steers, Sullivan, McNamar & Rogers, Indianapolis, for plaintiff-appellant.
H. Earl Capehart, Krieg, DeVault, Alexander & Capehart, Heather M. McPherson, Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Indianapolis, for defendants-appellees.
Plaintiff-appellant Miles G. Burford appeals from the trial court's action in dismissing his amended petition for partition of real estate pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6), for failure to state a claim upon which relief can be granted.
The sole issue presented for review by this court is the correctness of the trial court's action.
The facts, gleaned from the amended petition and developed by the plaintiff-appellant's response to the several motions to dismiss, and the briefs, disclose that there are two parcels of real estate. Parcel I, in the City of Indianapolis, is owned by numerous defendants who will be referred to herein for convenience as the "Piel Family." Parcel II is adjoining real estate, the title to which is held by plaintiff-appellant, William B. Burford III (now deceased), Helen Danner Garrigues, and H. Burford Danner, each owning an undivided one-fourth, as tenants in common. For convenience we shall refer to the owners of Parcel II as the "Burford Family." The Burford Family owns no interest in Parcel I. The Piel Family owns no interest in Parcel II.
The Piel Family leased their Parcel I to S. S. Kresge Co. in 1945, and the Burford Family leased their Parcel II to Kresge at the same time, but by a separate lease. Under the terms of each separate lease, Kresge had the right to construct a six-story commercial building covering both parcels. The ownership of the building, pursuant to the terms of the separate leases, was to revert to the owners of the fee at the termination of the leases. The separate leases further contained a provision which obligated Kresge to so construct the building that the building could, with practicability, be converted into two buildings upon the expiration of the leases. Kresge failed to construct the building along the property line, so as to make two buildings. When the leases expired in 1975, both the Piel Famiy and the Burford Family made separate claims against Kresge for damages for their breach of the leases in respect to the division of the building. Kresge settled both claims separately for substantial sums, for damages incurred by the owners. This brings us to the crux of the problem. The Piel Family and the Burford Family each own a separate lot contiguous to each other and spanned by one building.
Plaintiff-appellant filed his suit for partition against his cotenants of Parcel II and the Piel Family as well. He claims that the parties entered into a joint venture by the execution of the separate leases to Kresge who had the right to build a building on the adjoining parcels for the parties' mutual benefit and profit and that the parties have joint and common interests in the building with each having the right to possession of an unidentifiable and undividable interest in the building. He claims that the building and Parcel I and Parcel II cannot be divided without damage to the whole. He concludes his petition for partition with a prayer for relief that the parties be adjudged the owners of the real estate and the building; that he may have partition by the sale of the whole building and both Parcel I and Parcel II; and that the proceeds be distributed according to the interests of the parties. Defendants-appellees Piel Family, as well as the plaintiff's cotenants, filed separate motions to dismiss which were sustained in the trial court.
T.R. 12(B)(6) provides for a motion to dismiss for "(f)ailure to state a claim upon which relief can be granted." Our Supreme Court in State v. Rankin, (1973) 260 Ind. 228, 230, 294 N.E.2d 604, 606, stated the rule to be that ". . . a complaint is not subject to dismissal (under a 12(B)(6) motion) unless it Appears to a certainty that the plaintiff would not be entitled to relief under Any set of facts." Therefore, the focus of this examination is whether under plaintiff-appellant's amended petition it appears that he is or is not entitled to any relief whatsoever.
Ind. Code 32-4-5-1 provides that "(a)ny person holding lands as joint tenant or tenant-in-common . . . may compel partition . . . ." The Indiana cases have held that the right of partition is one of the incidents of the cotenancy, together with the right of sale of the whole tract in the event the land is indivisible. McClure v. Raber, (1939) 106 Ind.App. 359, 19 N.E.2d 891; Weaver v. Gray, (1906) 37 Ind.App. 35, 76 N.E. 795.
The first problem in the case at bar is whether an owner, where there are two separate lots, owned by different interests, spanned by a common building, can maintain partition proceedings for the sale of the whole. The Indiana cases hold that he cannot.
In Kitchen v. Sheets, (1848) 1 Ind. 138, the plaintiff filed his petition for partition where he was a tenant in common in one tract with four persons, and a tenant in common in another tract with six persons. The court held he could not have a division of the two tracts in one suit.
To continue reading
Request your trial
-
Marriage of Dall, In re
...parties.); Warner v. Young America Volunteer Fire Department, 164 Ind.App. 140, 326 N.E.2d 831, 838 (1975); Burford v. Burford, 182 Ind.App. 640, 396 N.E.2d 394, 397 (1979) (All persons having an interest in real estate are necessary parties to a partition action). Moreover, Ind.Trial Rule ......
- Consolidated Rail Corp. v. Burlington Northern R. Co.
-
Willett v. Clark
...their jointly-owned real and personal property, which, as co-tenants, they had a right to do. IND.CODE 32-4-5-1; Burford v. Burford (1979), 182 Ind.App. 640, 396 N.E.2d 394. Also, while we are unaware of any Indiana appellate decisions sanctioning partition of personal property, the general......
-
Hutchinson v. Spanierman
...While the district court cited cases dealing with the partition of real property to support this proposition, see Burford v. Burford, 396 N.E.2d 394, 397 (Ind. Ct. App. 1979); Hurwich v. Zoss, 170 Ind.App. 353 N.E.2d 549, 551 (Ind. Ct. App. 1976); Helvey v. O'Neill, 288 N.E.2d 553, 557 (Ind......