Boyer v. Leas
| Decision Date | 11 December 1945 |
| Docket Number | 17351. |
| Citation | 64 N.E.2d 38,116 Ind.App. 502 |
| Parties | BOYER v. LEAS et al. |
| Court | Indiana Appellate Court |
Rehearing Denied Jan. 24, 1946.
See 64 N.E.2d 591.
Appeal from Steuben Circuit Court; Clyde C. Carlin, Judge.
Mountz & Mountz, of Garrett, for appellant.
Wood & Wood, of Angola, for appellees.
The second paragraph of appellant's complaint, upon which judgment herein was rendered, alleged that the appellee, Grace Leas, pursuant to an agreement between her and the appellant, purchased eighty acres of land with his funds, and as his agent and trustee, and that she now holds it as trustee for his benefit. It concluded with a prayer that his title be quieted and the appellees be required to convey the land to him.
The appellees denied the controverted allegations of the complaint, and the appellee Grace filed a 'cross-complaint' which alleged that appellant had taken possession of the land, had held and farmed it and had removed timber from it, all without her consent, and she demanded a judgment for rent and damages as a result thereof.
The court found the facts specially, stated its conclusions of law thereon, and rendered judgment in favor of appellees as hereinafter mentioned.
The errors assigned are that the court erred in each of its conclusions of law and in overruling the motion for new trial. The specifications in the motion for new trial here relied upon are that the decision (1) is not sustained by sufficient evidence and (2) is contrary to law.
Under his assigned error that the court erred in overruling his motion for new trial, the appellant is entitled to have this court determine (1) whether among the special findings there is one which is essential to the decision made by the court which is not supported by any evidence, or inferences reasonably to be drawn therefrom, and (2) whether the undisputed evidence establishes a controlling fact within the issues which is not found, but which if found would necessitate different conclusions of law and a different judgment based thereon. Central, etc., v. Salb, 1938, 106 Ind.App. 495, 13 N.E.2d 875. The appellant makes no attempt to point out the existence here of either of these situations, and our examination of the evidence fails to disclose such. This assigned error will, therefore, not be further noticed.
The appellant moved to strike out the 'cross-complaint' for several reasons, but he here undertakes to support only the assigned reason that the allegations thereof are not germane to the subject matter of the complaint.
Grace did not seek to quiet her own title to the eighty acres, nor did she seek the possession of it. Nevertheless, in her answer she denied the title of the appellant, and in her 'cross-complaint' she alleged that she herself had purchased the land in question, and that the appellant took and held possession of it without her consent, over her objection and to her damage. We think the matters pleaded in the 'cross-complaint', with the possible exception of rhetorical paragraph 6 thereof, were so 'connected with the cause of action' that the motion to strike it was properly overruled. Gillenwater v. Campbell, 1895, 142 Ind. 529, 41 N.E. 1041.
Rhetorical paragraph 6 of the 'cross-complaint' pleaded damage to other land owned by her, caused by appellant's driving over and through the crops there. It is not necessary to decide whether this paragraph should have been stricken. The court's failure to do so resulted in no harm to appellant, for by its failure to find that such damage resulted, it in effect found that none did result.
The findings were filed on July 1, 1944. Condensed, they disclose that as the result of partition proceedings between other parties, a sixty and an eighty acre tract of land were for sale by a commissioner. Each tract was appraised at $1000. The sixty was adjacent to a public highway and cornered with the eighty, which was not. Access to the eighty could only be gained by going across the sixty, as all parties concerned knew, and for that reason the commissioner would sell the two tracts only to the same purchaser. The commissioner was willing to let the purchaser have immediate possession of the two tracts.
On February 23, 1939, appellee Grace Leas bid $2000 for the two tracts. The commissioner accepted the bid and on the same day issued to her a 'certificate' acknowledging receipt of the sum of $666.66 paid by her, and reciting that he had sold the two tracts to her for $2000. The appellee Grace had already told appellant 'that she did not want the eighty acre tract, but would let him have said tract for the appraised value if he wanted it, and (would) give him a right-of-way to enter said tract.' On February 25, 1939, appellant paid her $333.33 and received from her a paper which read as follows: After making this payment the appellant, with the knowledge of the commissioner and of the appellee Grace, took possession of the eighty under claim of title as purchaser at the commissioner's sale, farmed the land and made improvements thereon, and has since remained in possession under claim of title thereto. While in possession, he cut and removed fire wood and saw logs from the land.
Shortly after the commissioner's sale above referred to, the partition proceedings were found to be defective. After further legal steps were taken the commissioner again advertised and offered the land for sale, meanwhile retaining the $666.66 the appellee Grace had paid to him, and on May 10, 1941, she again bid in the two tracts at the appraised value of $1000 each, paid or secured the balance of the purchase price, and received the commissioner's deed to the two tracts. On May 6, 1941, appellee Grace signed and mailed and appellant received a letter as follows:
On May 10, 1941, the...
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