Baxter v. Baxter
| Decision Date | 03 November 1910 |
| Docket Number | No. 7,204.,7,204. |
| Citation | 92 N.E. 881,46 Ind.App. 514 |
| Parties | BAXTER v. BAXTER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.
Action by James Baxter against William H. Baxter. From a judgment for plaintiff, defendant appeals. Affirmed on condition.Jas. M. Robinson, M. H. Luecke, W. G. Colerick, and Guy Colerick, for appellant. Elmer Leonard and H. C. Underwood, for appellee.
Appellee brought this action against appellant to quiet his title to certain real estate in Allen county, Ind. The complaint was in two paragraphs. A joint and several demurrer thereto for want of facts was overruled, to which ruling the appellant took the following exception: “To which ruling of the court the defendant excepts.”
Appellee insists that no question is raised as to the sufficiency of either paragraph of the complaint separately considered for the reason that the exception was “in gross and not several.” Appellee has cited cases in support of his contention; but those cases on this point have been disapproved. Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524;Bedford Quarry Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418;City of Decatur v. McKean, 167 Ind. 249, 78 N. E. 982;United States Cement Co. v. Koch, 42 Ind. App. 251, 85 N. E. 490.
Appellant's first assignment questions the first paragraph for want of facts. The objection lodged against this paragraph is that it does not show that plaintiff is claiming an interest in the real estate adverse to the appellee. It appears from this paragraph that appellee was the owner in fee simple of the real estate described, and that the defendant “is claiming some interest in and title to said real estate, which is unfounded and without right and constitutes a cloud upon plaintiff's title.” In Rennert v. Shirk, 163 Ind. 542, 72 N. E. 546, it is said: “In an action to quiet title under our statutes (section 1082, Burns' Ann. St. 1901), the pleading, to be sufficient, must allege that the pleader is the owner of the real estate described therein, or a certain interest therein, and that the defendant in the action, or cross-action, claims an interest therein, and that such claim is adverse to the title asserted in said pleading, or that the same is unfounded and a cloud upon such title.” In the paragraph now being considered, it is alleged that the defendant's claim of title “is unfounded and without right and constitutes a cloud upon plaintiff's title.” This allegation was the equivalent of an allegation that defendant's claim was “adverse” to plaintiff's title, and was sufficient to withstand the objection urged against it. Rennert v. Shirk, supra; Corbin Oil Co. v. Searles, 36 Ind. App. 215, 75 N. E. 293.
Appellant also insists that the second paragraph was insufficient as against a demurrer for want of facts. In this paragraph it is alleged that appellee, on December 28, 1906, was the owner of the land in controversy. Following this general allegation of ownership, there is a statement of facts showing that appellee was on that day 83 years of age; that his eyesight was bad; that he was physically weak and infirm; that appellant, then a strong and able-bodied man, took hold of him in a rude and angry manner, and by threats to do him bodily injury, and to save himself from what he believed to be great danger of bodily harm, he executed to appellant, without consideration, a deed for an undivided one-half interest in the real estate in question. As to this paragraph it is claimed that it does not show ownership of the land in appellee at the time the suit was commenced, nor that the appellant was then claiming any title or interest in the land adverse to the appellee, nor that the alleged grantor had at any time demanded a reconveyance, nor had rescinded, or offered to rescind, the deed made by him to the appellant. In an action to quiet title, the complainant must show the interest in the land which he asks to have quieted, and that he is the owner of such interest at the time the action is begun. Chapman v. Jones, 149 Ind. 434, 47 N. E. 1065, 49 N. E. 347. And a complaint which fails to make this showing will be held insufficient as against a demurrer for want of facts. Corbin Oil Co. v. Searles, supra. In this paragraph it is alleged that the plaintiff (appellee) on December 28, 1906, was the owner of the land in question. The pleader then proceeds with a statement of facts showing that the only defect in his title arose out of a certain alleged deed made by him to the appellant; that the deed was not the act of the plaintiff, and was made under such circumstances as to render it ineffectual to convey title; that the appellant had caused it to be recorded in the deed records of Allen county. It was not necessary for the plaintiff to allege in terms ownership of the real estate at the time the suit was commenced, or that the defendant claims title adverse to the plaintiff, if the facts show ownership, and that such claim is inconsistent with plaintiff's title. Kitts v. Willson, 106 Ind. 147, 5 N. E. 400;Bisel v. Tucker, 121 Ind. 249, 23 N. E. 81;Seymour Water Co. v. City of Seymour, 163 Ind. 120, 70 N. E. 514;Caress v. Foster, 62 Ind. 145; Corbin Oil Co. v. Searles, supra.
As to the claim of interest in the land on the part of appellant, it appears that he appreciated the value of the deed enough to have it recorded in the record of deeds of the proper county, which deed upon its face showed that he was the owner of an undivided interest in the land in question. The fact that such a deed was on record, and that it was obtained from appellee in the manner and form alleged, and that he is defending a suit on the part of his grantor to quiet his title as against said deed, is sufficient to warrant this court in holding that the paragraph is sufficient in this particular.
As to the question of a demand for reconveyance before bringing suit, it is sufficient to say that the facts show that the deed was obtained by the appellant wrongfully and fraudulently, and, this being true, no demand was necessary.
Appellant insists that the court erred in overruling his motion to amend his cross-complaint. The motion to amend was made after all the evidence was in, argument of counsel heard, except the closing argument for appellee. The right to amend pleadings calls for the sound judicial discretion of the trial court. While such discretion is subject to review by an appellate tribunal, such discretion will not be disturbed unless it clearly appears to have been abused to the prejudice and harm of the party against whom the ruling was made. Section 405, Burns' Ann. St. 1908; New Castle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485;Chicago, etc., R. Co. v. Williams, 168 Ind. 276, 79 N. E. 442;Smith & Stoughton Corporation Co. v. Byers, 20 Ind. App. 51, 49 N. E. 177.
It appears that the cross-complaint proceeded upon the theory that the deed in question was made to the appellant in pursuance of an agreement between the appellant and appellee. At the time the alleged deed was made, there was a mortgage for $2,000 on the land, and there is nothing in the deed indicating that the grantee was to assume any part of the mortgage. The proposed amendment was to the effect that the appellant was to assume the payment of one-half of that mortgage. By the cross-complaint the appellant sought to have the title to an undivided one-half interest in the land quieted in him. There was no attempt in any of the pleadings to reform the deed, or to reform any contract in connection therewith. The evidence in the case is not before us, and it does not appear, from anything disclosed by the record, that any substantial right of the appellant was prejudiced by the court's refusal to allow the amendment, nor does it appear that he was in any way misled to his injury.
Appellant also earnestly contends that the court erred in overruling his motion for judgment on the answers of the jury to interrogatories. There is not such conflict between such answers and the general verdict that both cannot stand. Such conflict must be made to appear before the general verdict will be disturbed. Indianapolis T. & T. Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143;Lowden v. Pennsylvania Company, 41 Ind. App. 614, 82 N. E. 941. In support of this motion it is claimed that the answers to the interrogatories show that, after the bringing of this action, both appellant and appellee joined in leasing the land to third parties; that such parties were in the actual possession of the land at the time of the trial; that the personal property on the farm was, after the making of the conveyance in question, sold, and the proceeds arising from such sale equally divided between appellant and appellee; that the appellee made no demand on the appellant for a reconveyance, nor was there an offer to rescind the contract under which said deed was executed, prior to the bringing of this action. These answers, when considered...
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