Bisel v. Tucker

• Decision Date: 12 December 1889
• Docket Number: 13,946
• Citation: 23 N.E. 81,121 Ind. 249
• Parties: Bisel v. Tucker
• Court: Indiana Supreme Court

23 N.E. 81

121 Ind. 249

Bisel v. Tucker

No. 13,946

Supreme Court of Indiana

December 12, 1889

From the Kosciusko Circuit Court.

Judgment reversed.

J. S Frazer, W. D. Frazer, A. G. Wood and F. E. Bowser, for appellant.

L. H Hammond, L. W. Royse, H. S. Biggs, A. F. Biggs, H. S. Cook and J. W. Cook, for appellee.

Elliott J. Olds, J., did not take part in the decision of this case.

OPINION

Elliott, J.

The complaint of the appellant alleges that she is the owner in fee of the land therein described; that the appellee proclaims that he is the owner of the property, and that he holds an interest in it; that he has stated to persons who intended to purchase it that she did not have a good title thereto; that, in truth and in fact, the appellee had no title to, or interest in, the property; that by reason of the false and slanderous statement the appellant has been prevented from disposing of her property, and that she has suffered damages in the sum of three hundred dollars. The prayer is for damages, and for a decree quieting the title in her. The appellee filed an answer in denial and a cross-complaint. In the cross-complaint it is alleged that the appellant's husband was indebted to the appellee on account of an unsettled partnership claim, and that he bought the land with the money of the partnership and took the title in his wife's name for the purpose of defrauding the appellee. The court found in favor of the appellee, declared a lien on the land, and decreed that it be sold to pay the lien. The appellant moved for a new trial as a matter of right under the statute, and the court sustained the motion as to the issue joined on the complaint, but denied it as to the judgment rendered on the issue joined on the cross-complaint of the appellee. After the motion was sustained as to the issue made by the complaint and the original answer, the appellee pleaded the recovery on his cross-complaint in bar, and to this answer a demurrer was addressed and overruled, and judgment was rendered against the appellant.

The trial court construed the complaint as one to quiet title, as is evident from the fact that it sustained the motion as to the issue made upon that pleading, and this was right. The complaint is not in the usual form, and contains unnecessary allegations, but judged, as it must be, from its general scope and tenor, there can be no doubt that the court gave it the true construction. It professes to be one paragraph only, and purports to state a single cause of action, and this it does, although damages are claimed, for the gravamen of the action is the appellee's ownership in fee, and the unlawful claim of the defendant to the land. The damages are merely incident to the principal right. The complaint, although not well drawn, does proceed on a definite theory, that theory is, that the plaintiff owns the land in fee, that the defendant wrongfully asserts title to it, and that the plaintiff is entitled to have her title quieted. In other words, the cause of action asserted by the plaintiff is that she owns the fee, that the defendant has no interest or title, and that he does assert a claim. This unquestionably makes a good complaint to quiet title. There is an averment that the defendant has no title or interest, and it was for want of this averment, and not for the want of the merely formal statement that the defendant's claim cast a cloud upon the title that the complaint in the case of Second Nat'l Bank, etc., v. Corey, 94 Ind. 457, was held bad. Where there is such an averment as is found in the complaint before us, the pleading can not be held bad on demurrer. Rausch v. Trustees, etc., 107 Ind. 1, 8 N.E. 25; Kitts v. Willson, 89 Ind. 95.

As the trial court correctly ruled that the complaint was one to quiet title, and granted a new trial as of right on that theory, the question resolves itself to this: Is a judgment declaring a lien entered on a cross-complaint filed in a suit to quiet title, a bar to the further prosecution of the suit in a case wherein a new trial has been granted on the issue joined on the complaint? It seems clear to us that it is not a bar, and that it was error to hold the answer which pleaded it as a bar to be sufficient. The order granting the new trial opened up the whole case, and did not confine the right of the plaintiff to litigate only such claims as were not asserted in the cross-complaint.

A plaintiff in a suit to quiet title can not obtain a decree if the defendant has any valid interest in the land, or any effective lien. The object of the suit is to remove the claims and liens which cloud the title, and where the plaintiff secures a general decree it does remove them. Ragsdale v. Mitchell, 97 Ind. 458; Watkins v. Winings, 102 Ind. 330, 1 N.E. 638; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446, and authorities cited; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431.

The purpose of awarding a new trial as of right to an unsuccessful plaintiff is to give him a second hearing upon his right to hold the property free from all claims and liens. If, by filing a cross-complaint, the defendant can secure a lien, and then, when a new trial is awarded, set up the judgment on the cross-complaint in bar of the action, the purpose of the statute will be completely thwarted. The statute, it is obvious, does not permit such a result. Its meaning is just what its words import, and that is that where a plaintiff in a suit to quiet title is unsuccessful, he shall, as of right, have another trial upon all the questions which affect his title to the land. His title is, of course, directly and materially affected by a lien, and he has a right to a second trial of the question, whether or not the lien asserted by the defendant does exist in fact and in law. This question is directly put in issue by the complaint. Lane v. Schlemmer, 114 Ind. 296, 15 N.E. 454; Green v. Glynn, 71 Ind. 336.

As it is put in issue by the complaint, it must certainly be one of the...