Baker v. State Bank of Akron, No. 16875.

• Docket Nº: No. 16875.
• Citation: 44 N.E.2d 257, 112 Ind.App. 612
• Case Date: October 21, 1942
• Court: Court of Appeals of Indiana

112 Ind.App. 612
44 N.E.2d 257

BAKER et al.
v.
STATE BANK OF AKRON et al.

No. 16875.

Appellate Court of Indiana, in Banc.

October 21, 1942.

Appeal from Wabash Circuit Court; Byron C. Kennedy, Judge.

Action by the State Bank of Akron, executor of the estate of Martha Zolman King, deceased, and others, against Virgil Baker, Rachel D. Baker, and Thomas F. Fitzgerald. From an adverse judgment, the defendants appeal.

Affirmed.

[44 N.E.2d 258]

Brubaker & Rockhill, of Warsaw, and Albert B. Chipman, of Plymouth, for appellants.

C. C. Campbell, Arthur Metzler, and Brown & Brown, all of Rochester, and Franklin W. Plummer, of Wabash, for appellees.

BEDWELL, Judge.

By this action the appellee, The State Bank of Akron, Akron, Indiana, as executor of the estate of Martha Zolman King, deceased, sought to set aside a deed of real estate and the assignment of a certificate of corporate stock, and, also, sought to recover the sum of $1,500 of the total amount of $2,500 that had been paid by its decedent, Martha Zolman King, to the appellants, Virgil Baker and Rachel D. Baker.

The deed which such executor sought to cancel and set aside was evidenced by an instrument which purported to have been signed by such decedent and which named the appellants, Virgil Baker and Rachel D. Baker, as grantees. The assignment of this stock certificate was evidenced by an instrument which appeared to have been signed by the decedent and which named Virgil Baker as assignee.

There was a trial by court which, upon proper request, made a special finding of the facts and stated its conclusions of law thereon in favor of the appellees, who are such executor and also the devisees and legatees under the last will of the decedent

[44 N.E.2d 259]

and against the appellants, Virgil Baker, Rachel D. Baker and Thomas F. Fitzgerald.

[1] The appellant, Thomas F. Fitzgerald, filed a separate demurrer to each of the amended first, second, fourth and fifth paragraphs of complaint, which were the paragraphs upon which the cause was tried. Such demurrer specified the want of sufficient facts in each paragraph to state a cause of action, and the memorandum thereof disclosed that appellant claimed that these paragraphs of complaint were insufficient because, although they alleged that he was a co-conspirator with his co-appellants, Virgil Baker and Rachel D. Baker, and aided and assisted them in the carrying out of a scheme to defraud the decedent of all of her property, both real and personal, they did not allege that he had any of the property secured by such fraud, or that he was claiming any interest therein, and that no relief by way of damages or otherwise was demanded as against him. But the same question is raised by the exceptions of each of the appellants to each of the conclusions of law, and the action of the trial court in overruling the demurrer was therefore immaterial, and such action will not be reviewed on appeal. Indianapolis & C. Traction Co. v. Arlington Telephone Co., 1911, 47 Ind.App. 657, 95 N.E. 280;Guynn v. Wabash County Loan & Trust Co., 1913, 53 Ind.App. 391, 101 N.E. 738;McHie v. McHie, 1939, 106 Ind.App. 152, 16 N.E.2d 987.

The allegations of the complaint and the special finding of facts set forth, in substance, the following, which will sufficiently present the question raised:

That the plaintiff, The State Bank of Akron, was executor of the estate of Martha Zolman King, deceased, and its coplaintiffs were devisees and legatees under her last will; that during the latter part of the year 1934 and the early part of the year 1935, Martha Zolman King was a widow of advanced years with no children of her own but with many nephews and nieces; that she lived in a home at Akron with a housekeeper and had real and personal property of the probable value of from forty to forty-five thousand dollars.

That during the year 1935 the defendants, Virgil Baker and Rachel D. Baker, planned and entered into a conspiracy to defraud the said Martha Zolman King and her estate, and to secure for themselves her property, real and personal; that in furtherance of said conspiracy they joined with them the defendant, Thomas F. Fitzgerald, and thereby planned and conspired to procure unlawfully a pretended title and deed to all the real estate owned by Martha Zolman King. The complaint and the special finding then set forth alleged acts and steps of such conspirators to secure the execution of the deed and assignment of stock which the plaintiffs sought to annual and set aside, and while the participation and acts of the appellant, Thomas F. Fitzgerald, in carrying out of such conspiracy are alleged and found, it is neither alleged nor found that he obtained or was claiming any interest in the property that was obtained through such deed and assignment of stock certificate.

The conclusions of law of the trial court upon the special finding were as follows:

“1. The law is with the plaintiffs and against the defendants, and the plaintiffs should recover against said defendants.

“2. The title to the real estate situated in Fulton County, State of Indiana, more particularly described as follows: * * * should vest in the proper beneficiaries of the estate of Martha Zolman King, deceased, and the pretended deed thereto to said defendants, Virgil Baker and Rachel D. Baker, as described and set out in the findings of facts hereinabove set forth, should be declared null, void and of no effect.

“3. The thirty shares of stock of South-moor Apartment Hotel, Inc., as described in the findings of facts herein, should be declared the property of the estate of Martha Zolman King, deceased, free and clear of any claims of title thereto of said defendants Virgil Baker and Rachel D. Baker, excepting, however, whatever interest the said Rachel D. Baker has by virtue of inheritance, legacy or devise as a legatee and devisee, or as an heir, in the estate of Martha Zolman King, deceased.”

The judgment upon such conclusions of law adjudged and decreed that the law was with the plaintiffs and against the defendants, Virgil Baker, Rachel D. Baker and Thomas F. Fitzgerald, but no specific relief was adjudged against Thomas F. Fitzgerald, and there was no judgment for damages. It might be mentioned that while each paragraph of the complaint demanded special equitable relief, in the nature of cancellation, there was also a demand for all other proper relief.

[2] It was said by Judge Elliott in the case of

[44 N.E.2d 260]

Doherty v. Holliday, 1894, 137 Ind. 282, 32 N.E. 315, 317, 36 N.E. 907, which was an action by creditors to set aside fraudulent conveyances and to recover their claims, where the complaint alleged a conspiracy to defraud: “The appellants' counsel, as is evident from what we have said, are in error in assuming that equity will not make a fraudulent grantee account for the value of property sold by him after its conveyance to him by the fraudulent grantor. It is, we may add, a familiar principle of equity jurisprudence, that...