Bercot v. Velkoff
| Decision Date | 08 May 1942 |
| Docket Number | 16577. |
| Citation | 41 N.E.2d 686,111 Ind.App. 323 |
| Parties | BERCOT et al. v. VELKOFF. |
| Court | Indiana Appellate Court |
Wood & Wood and G. Kenneth Hubbard, all of Angola, for appellant.
Orville Stevens and H. Lyle Shank, both of Angola, for appellee.
This was an action brought by the appellee, Metodi Velkoff against the appellants to quiet his title to Lot No. 8 in the replat of the plat of Rosedale, a village which is located on the southwest shore of Lake James in Steuben County, Indiana.
The complaint of appellee alleged, "that he is the owner of the following described real estate in Steuben County and State of Indiana, to-wit:--Lot No. 8 in the Plat of the Re-plat of Rosedale located in the northwest quarter of section 4, township 37 north range 13 east and more particularly described as follows: * * *." The complaint set forth that the defendants were claiming an interest in said land adverse to plaintiff's title and that the claim of defendants was unfounded and without right and was a cloud upon the plaintiff's title. The prayer was to quiet title as against any and all claims of defendants.
The appellants filed an answer in general denial to this complaint and the appellants, Arthur M. Jersey and Corrine Jersey, filed a cross-complaint against the appellee and their co-defendants to enjoin the appellee from interfering with or obstructing the use of a right of way or alley which was alleged to exist along the north part of such Lot No. 8 in the plat of the replat of Rosedale.
The issues made upon the complaint and the cross-complaint were submitted to the court for trial and it made a special finding of facts and stated its conclusions of law thereon. These required a judgment for appellee on his complaint and against the two appellants upon their cross-complaint. The appellants, on appeal, first attack the sufficiency of the evidence to sustain the finding of the trial court.
For an understanding of the legal questions presented for determination we set forth the following facts taken from the record:
In 1915 one Joseph Rose was the owner of certain real estate located upon the southwest shore of Lake James in Steuben County Indiana, and on March 20, 1915, he made and acknowledged a plat thereof which he designated by the name of Rosedale. This plat, on March 24, 1915, was duly recorded in Plat Book 2 at page 54 of the records in the office of the recorder of Steuben County, Indiana. The plat consisted of eleven lots numbered from one to eleven, both inclusive, and each of a uniform width of 50 feet, but varying in depth. These lots extended west from the southwest shore of the lake to a highway 20 feet wide which was platted adjoining the west boundaries thereof.
In the summer of 1922 Mary E. Metzgar was the owner of the legal title to Lot No. 8 as shown on such plat and Otis D. Wickered and his wife, Opal E. Wickerd, were the owners of the legal title to Lots Nos. 7, 9, 10, and 11. Herman H. Hilker owned some interest in the lots where the legal title was in Otis D. Wickered and wife, but the nature and character of such interest does not appear. During the summer of such year Mary E. Metzgar, Otis D. Wickerd, Opal E. Wickerd, and Herman H Hilker orally agreed that a replat of such lots be made. Such replat was prepared by two civil engineers and on August 12, 1922, it was acknowledged by each of such owners. The statement on such plat is as follows:
Then follows an acknowledgment by each person before a notary public in which they acknowledge the execution of the foregoing and attached replat of Lots Nos. 7, 8, 9, 10, and 11, of the plat of the village of Rosedale. This replat was duly recorded in Plat Book 2 of the records in the office of the recorder of Steuben County, Indiana, on September 6, 1922. By this replat the width of each of the included lots at the west end thereof was reduced from 50 feet to 43.6 feet, but at a point approximately 100 feet east from such west end, the width of each lot was increased from 50 feet to 61.5 feet, and the width of each became greater as each approached the shore of the lake. It is apparent that it was the intention of the lot owners to reduce the width at the west end of the lots, but to increase it where the same abutted upon the lake shore. It is also apparent that this change in the boundary lines of the lots would result in the adding to Lot No. 8, then owned by Mary E. Metzgar, certain land from Lots Nos. 7 and 9 which adjoined on the south and north thereof; also, certain land that was in Lot No. 8 previous to the replatting was taken therefrom and added to the adjoining Lots Nos. 7 and 9. After the replat was made and signed by Mary E. Metzgar, but without her knowledge and before the recording thereof, some unknown person altered the prepared plat so that it appeared that there was an alley 10 feet wide extending along the north side of Lot No. 8 as it appeared on the replat.
No deeds were exchanged between the different owners of such lots in connection with this replatting, and the appellants are contending that the oral agreement and the replatting of these particular lots was not effective to make Mary E. Metzgar the owner of Lot No. 8 as shown upon the replat; that the only portion thereof she owned so that she could convey by deed was the portion thereof that appeared upon the original plat.
The trial court, evidently from the oral agreement of the adjoining landowners and the making and recording of such replat, determined as a fact that Mary E. Metzgar was the owner of Lot No. 8 of the plat of the replat of Rosedale from August 12, 1922, to April 21, 1925. On the latter date she conveyed by warranty deed to Edward C. Kolb, "Lot numbered eight (8) in the Recorded plat of Rosedale, the same plat being a part of the northwest fractional quarter of Section four (4) in township thirty-seven (37) north range thirteen (13) east in said county and State."
The trial court, basing its determination upon the deed containing such a description, found as a fact that Edward C. Kolb was the owner of Lot No. 8 of the plat of the replat of Rosedale from April 21, 1925 to June 5, 1936. On June 5, 1936, Edward C. Kolb and wife conveyed to the appellee, by warranty deed; their deed contained the same description as was contained in the deed from Mary E. Metzgar to Edward C. Kolb, and the trial court upon the evidence thereof found as a fact that the appellee, "became the owner in fee simple of lot number eight (8) of the Plat of the Re-plat of Rose Dale on June 5, 1936 and is now and has been the owner in fee simple since that time of said lot number eight (8)."
Two legal questions that are presented for determination are as follows:
1. Was the oral agreement entered into between the adjoining landowners who owned Lots Nos. 7, 8, and 9 in the replatted territory, followed by the making and recording of such replat, legally sufficient to change the boundary lines of Lot No. 8 owned by Mary E. Metzgar in the original plat so that immediately following the making and acknowledgment of such replat she became the owner of all of Lot No. 8 as shown upon such replat so that she could convey the same by warranty deed to Edward C. Kolb, and he could convey the same by warranty deed to appellee, and appellee could obtain a title thereby that he could quiet by his action herein?
2. Was the description "Lot No. 8 in the recorded plat of Rosedale" sufficient to pass title to "Lot No. 8 in the recorded plat of the replat of Rosedale"?
It is a rule of law so well established that it has become axiomatic, that in suits to quiet title, the plaintiff must recover, if at all, on the strength of his own title. The evidence must show title in the plaintiff; it is not sufficient that it show that the adverse claimant is without title. Cozy Home Realty Co. v. Ralston, Rec., 1938, 214 Ind. 149, 14 N.E.2d 917; Willard v. Bringolf, 1936, 103 Ind.App. 16, 28, 5 N.E.2d 315.
In this particular action the complaint of plaintiff specifically described the real estate that was within the boundaries of Lot No. 8 as replatted. The only allegation concerning the nature of the title of appellee therein was an allegation that he was "the owner" of the particular real estate. The complaint does not allege that he was the owner in fee simple nor does it allege that he was the owner of the equitable title. In an action to quiet title, where the plaintiff specifically describes the title upon which he relies, his recovery must be upon the title as laid. Ault v. Miller, 1932, 203 Ind. 487, 181 N.E. 35; Danforth v. Meeks, 1911, 176 Ind. 400, 96 N.E. 153; Kozanjieff v. Petroff, 1939, 215 Ind. 286, 19 N.E.2d 563, 122 A.L.R. 479.
It is provided by statute that: "Conveyances of lands or of any interest therein, shall be by deed in writing subscribed, sealed and duly acknowledged by the grantor or by his attorney, except bona fide leases for a term not exceeding three (3) years." Burns' R.S. 1933, Sec. 56-103, Sec....
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