Alexander v. Spaulding

• Decision Date: 10 March 1903
• Docket Number: 19,704
• Citation: 66 N.E. 694,160 Ind. 176
• Parties: Alexander v. Spaulding et al
• Court: Indiana Supreme Court

66 N.E. 694

160 Ind. 176

Alexander v. Spaulding et al

No. 19,704

Supreme Court of Indiana

March 10, 1903

From Wells Circuit Court; C. W. Watkins, Special Judge.

Suit by Marcellus Alexander against Dustan M. Spaulding and another. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

A. L Sharpe and C. E. Sturgis, for appellant.

J. S Dailey, Abram Simmons and F. C. Dailey, for appellees.

OPINION

Hadley, C. J.

Suit by appellant to recover money alleged to be held in trust by appellees.

In substance, it is alleged in the complaint that Franklin Spaulding, in February, 1874, died intestate in Wells county, Indiana, leaving Dustan and Albert Spaulding (appellees), Laura Alexander, and three other children, his only heirs at law. Appellant, as surviving husband, has, by descent, succeeded to the rights of Laura Alexander; that prior to his death, to wit, in October, 1867 Franklin Spaulding purchased certain described lands in Wells and Blackford counties, "and had the same conveyed to the defendants [appellees] to hold in trust for him. * * * That afterwards the said Franklin Spaulding traded said lands for other described lands in Blackford county, and had the deed of conveyance made to the defendants [appellees], leaving the same in secret trust to said defendants, for himself, and his heirs aforesaid; that said defendants never paid any consideration for said lands whatever, and the same were the lands of the decedent, and belonged to his estate at the time of his death." Appellees administered upon the estate of their father, and afterwards, to wit, in October, 1875, they sold the lands last described for $ 6,400, and received the money; that after the sale appellees paid to each of the heirs of Franklin Spaulding, except the plaintiff (appellant), their distributive shares of the $ 6,400; that there is due the plaintiff one-sixth part of the $ 6,400; that appellees kept the trust concealed, and appellant learned of it for the first time in 1898, when he immediately demanded his share; that when demanded, appellees denied the trust, and denied that they owed him money on any account. Wherefore, etc. Upon issues joined there was a trial by the court, a special finding of facts and conclusions of law adverse to appellant, and, over his motion for a new trial, judgment was rendered against him for costs. Error is assigned upon the overruling of the demurrer to the fifth paragraph of answer, overruling exceptions to the conclusions of law, and overruling the motion for a new trial.

So far as material to the controlling question in the case, the special finding shows that Franklin Spaulding, the ancestor, on June 19, 1866, conveyed to appellee Dustan M. Spaulding, his son, all the property he possessed, both real and personal, the said Franklin at the time of the conveyance being indebted to creditors in the aggregate sum of $ 11,150. The consideration of the conveyance was that Dustan was to assume and pay all the said outstanding indebtedness of his father, and to pay to his two sisters (including Laura, the deceased wife of appellant) and to his brother Benjamin each $ 1,000, and to his father, $ 500 each year during life. At the time of this arrangement and transfer, appellee Albert Spaulding was a minor, and his father further stipulated that if Albert should assist his brother Dustan in the payment of said indebtedness of $ 11,150, and in the performance of the other considerations, Dustan should thereupon transfer to Albert an undivided one-half interest in all the property conveyed. After the execution of the above deed Dustan entered into the possession of all the real estate and personal property as his own, and continued thereafter to occupy and farm the real estate, and in 1872 conveyed and transferred an undivided one-half interest in all of said property to his brother Albert (appellee), and the two paid to their two sisters (including Laura) and to their brother Benjamin each $ 1,000, and to their father, Franklin, $ 500 per annum during the remainder of his life. In 1870 appellees purchased the real estate in controversy for $ 5,400, and in part payment thereof conveyed to their grantor a certain sixty-acre tract in Blackford county, owned by them in their own right, for $ 3,150, and for the balance of the purchase price executed to their grantor their promissory notes aggregating $ 2,250, and which notes appellees subsequently paid with their own money. In 1875 appellees sold the land in controversy for $ 6,400.

The conclusion at which we have arrived makes it unnecessary for us to consider the sufficiency of the fifth paragraph of answer.

The complaint fails to set forth a good cause of action. And there being no sufficient complaint, it is immaterial whether the answer is good or bad, since there is no office for an answer to perform until the plaintiff has stated a cause of action against the defendant. State, ex rel., v. Emmons, 88 Ind. 279; Bowen v. Striker, 100 Ind. 45; Ice v. Ball, 102 Ind. 42 at 42-47, 1 N.E. 66; Louisville, etc., R. Co. v. Badenschate, 141 Ind. 251, 263, 39 N.E. 703; Carmel Nat. Gas, etc., Co. v. Small, 150 Ind. 427, 47 N.E. 11; Hiatt v. Town of Darlington, 152 Ind. 570, 53 N.E. 825.

It is averred in the complaint that Franklin Spaulding purchased certain lands, and "had the same conveyed to the defendants to hold in trust for him," and afterward traded said lands for other lands, and "had the deed of conveyance made to the defendants, leaving the same in secret trust to said defendants, for himself and heirs aforesaid that said defendants never paid any consideration for said lands whatever, and the same were the lands of the decedent and belonged to his estate at the time of his death." The foregoing are the only averments in the complaint relating to a trust of any character. It is not charged that...