Atkinson v. Atkinson

• Decision Date: 07 May 1948
• Docket Number: No. 9488.,9488.
• Citation: 167 F.2d 793
• Parties: ATKINSON v. ATKINSON.
• Court: U.S. Court of Appeals — Seventh Circuit

167 F.2d 793 (1948)

ATKINSON v. ATKINSON.

No. 9488.

Circuit Court of Appeals, Seventh Circuit.

May 7, 1948.

Franklin D. Trueblood, of Chicago, Ill., for appellant.

Jacob S. White and Edward B. Raub, Jr., both of Indianapolis, Ind., and Philip B. O'Neil, of Anderson, Ind. (Pence, O'Neill & Diven, of Anderson, Ind., and White, Wright, Raub & Forrey, of Indianapolis, Ind., of counsel), for appellees.

Before KERNER and MINTON, Circuit Judges, and DUFFY, District Judge.

MINTON, Circuit Judge.

On October 10, 1945, George K. Atkinson filed a complaint in the District Court of the United States for the Southern District of Indiana against his wife, Gladys M. Atkinson, and Charles R. Atkinson and his wife Jane Atkinson to quiet title to certain real estate in Madison County, Indiana. Jurisdiction was based upon diversity of citizenship. Charles R. Atkinson was a son of Gladys by a former marriage, and he had taken the plaintiff's name. The plaintiff alleged that the real estate in question was owned originally by Mrs. Verne McWhorter, who was the mother of his wife Gladys; that Mrs. McWhorter had conveyed the real estate, which was residential property in Anderson, Indiana, to the plaintiff and his wife Gladys in consideration of the plaintiff's advancing some $16,000 for the remodeling of the house and supervising the remodeling thereof; that his wife thereafter induced him to sign a deed conveying the property back to Mrs. McWhorter so that she in turn could convey it to George K. Atkinson and Gladys M. Atkinson as joint tenants for life, with remainder to Charles R. Atkinson, the deeds to be delivered only upon a contingency that never happened; that Gladys his wife, in violation of said agreement, caused the deeds to be delivered. The plaintiff prayed for the cancellation of these deeds, which he alleged were wrongfully delivered, and prayed that the title of George K. Atkinson and Gladys M. Atkinson to the property be quieted.

To this complaint Gladys filed an answer and a counterclaim; to said counterclaim the plaintiff filed a motion to dismiss, challenging its sufficiency. Charles filed an answer to the complaint and a counterclaim. The plaintiff did not challenge the sufficiency of the counterclaim of Charles but filed an answer in which he substantially denied the allegations of that counterclaim. With the separate counterclaims of Charles and Gladys pending, the plaintiff dismissed his complaint, leaving the counterclaim of Gladys pending with a motion to dismiss for insufficiency addressed to it, and the counterclaim of Charles with an answer pending against it. The court subsequently overruled the motion to dismiss the counterclaim of Gladys. The plaintiff filed a written declination to plead further as to the counterclaim of Gladys and the court set for trial the counterclaim of Gladys, unanswered, and the counterclaim of Charles, answered. The plaintiff declined to participate further in the proceedings, and the court heard the matter and entered findings of fact and stated its conclusions of law thereon and gave judgment for both counterclaimants. From this judgment the plaintiff has appealed.

First, as to the sufficiency of the counterclaim of Gladys against the plaintiff, George. She alleged among other things therein that prior to her marriage to the plaintiff on December 4, 1937, she had been the owner in her own name of certain specified lots in the city of Anderson, Indiana, and that her mother Mrs. McWhorter had been the owner of certain real estate in said city, which was the same real estate described in the plaintiff's complaint and concerning which the plaintiff had sought relief. This latter property will be hereinafter referred to as Lot 24. She also alleged that she and Mrs. McWhorter were induced after her marriage to the plaintiff to convey their respective real estate to George and Gladys M. Atkinson, husband and wife, by representations made to them by the plaintiff concerning his age, his lucrative employment and great wealth and his ability to provide Gladys with ease and comfort, and that she would not have to work, as she had been accustomed to do; that they relied upon these representations, which were false; that Gladys conveyed her lots to a trustee, who in turn conveyed them back to George and Gladys as tenants by entirety, and Mrs. McWhorter had conveyed her property to the plaintiff and Gladys as tenants by entirety.

Gladys alleged further that thereafter she was able to induce George to join her in executing a deed conveying Lot 24 back to Mrs. McWhorter, who in turn conveyed the property to George and Gladys as joint tenants for life, with remainder to Charles R. Atkinson. This deed is not alleged to have been made pursuant to the fraudulent inducements of George, but by the inducements of Gladys. Gladys prayed that the deeds whereby she conveyed her separate real estate to herself and George Atkinson as tenants by entirety be cancelled and set aside and her title thereto quieted, and that the title to her mother's Lot 24 be quieted in Gladys' son Charles R. Atkinson.

On the trial, this counterclaim had no issue tendered upon it and it must be taken as confessed, and the material allegations thereof accepted as true. Federal Rules of Civil Procedure, rule 8(d), 28 U.S.C.A. following section 723c. The allegation that the plaintiff falsely represented that he was a man of great wealth when he was not alleges the representation of a present existing fact, and the further allegations that Gladys relied thereon and believed said representations to be true and conveyed an interest in her separately owned lots to the plaintiff when said...