Brown v. Freudenberg

• Decision Date: 20 December 1938
• Docket Number: 15917.
• Citation: 17 N.E.2d 865,106 Ind.App. 692
• Parties: BROWN v. FREUDENBERG.
• Court: Indiana Appellate Court

17 N.E.2d 865

106 Ind.App. 692

BROWN v. FREUDENBERG.

No. 15917.

Appellate Court of Indiana, in Banc.

December 20, 1938

Nat H. Youngblood, Thos. M. Duncan, Edwin C. Henning, and French Clements, all of Evansville, for appellant.

Wm L. Mitchell and Ollie C. Reeves, both of Evansville, for appellee.

STEVENSON Presiding Judge.

This is an action by the appellee against the appellant to enforce the specific performance of a contract entered into between the appellee and one Carrie Brown, deceased, for the conveyance to the appellee of certain real estate in the city of Evansville. There was a trial by court and upon request, a special finding of facts was made and conclusions of law were stated. A decree was entered upon the conclusions of law in favor of the appellee and a commissioner was appointed to execute a deed conveying to the appellee sad real estate. Exceptions were taken to each conclusion of law.

The complaint is in one paragraph to which the appellant, Virgil L. Brown, filed a motion to make more specific, which motion the court overruled. This ruling constitutes the first error properly assigned. The appellant also filed a demurrer to the complaint for want of sufficient facts, which demurrer the court overruled. This ruling constitutes the second error properly assigned. The third error properly assigned is that the court erred in sustaining the appellee's demurrer to appellant's second paragraph of answer. The other errors assigned and relied on for reversal arise on separate exceptions of appellant taken to each conclusion of law and the overruling of the motion of the appellant for a new trial.

The facts as found by the court are briefly as follows: The appellee, Norma Carrie Freudenberg, was a niece of one Carrie Kister. That on November 6, 1931, said Carrie Kister was an unmarried woman, having neither father or mother, child or children, nor any descendant of any child or children. That she was on said date approximately fifty-seven years of age living alone on real estate described as lots numbered 15 and 16, in Block No. 8, in Heidelbach and Elsas Enlargement of the city of Evansville, which was all the real estate that she owned; that located on this real estate was a residence known as 620 North Main Street and on this real estate was also a two-room office building and another smaller residence, which properties the said Carrie Kister was renting to various tenants.

That on November 6, 1931, said Carrie Kister expressed her desire to her niece, Norma Carrie Freudenberg, that she, her husband and their son, leave their home at 621 Keck Avenue and come to the home of said Carrie Kister at 620 North Main Street and there provide a home for said Carrie Kister, keep the property up, make necessary repairs thereto, look after the same, and provide care and attention to said Carrie Kister and as an inducement for said appellee and her family to come to the home of said Carrie Kister, and to do the things for her above set out, said Carrie Kister stated to said plaintiff that she would leave to appellee by will all of the real estate afore-described.

The court further finds that on the 6th day of November, 1931, the appellee accepted this proposal and that she and her husband left their home at 621 Keck Avenue and moved to the home of said Carrie Kister, took possession of the real estate in question and entered upon the performance of the contract.

That the appellee rented her home on Keck Avenue in November, 1931, and did not reside there again until March, 1934. That during the period following November 6, 1931, there were periods of time during which the appellee, with the consent of the decedent and at her request, was temporarily absent from the real estate of the decedent but during said intervals continued to perform her contract to the full and complete satisfaction of said Carrie Kister. That during said periods of absence from the premises the appellee was assisting in the care of her father, a brother of the said Carrie Kister, who was ill and that such service was performed at the request and with the consent of the said Carrie Kister and that a portion of said time was also occupied in the care of appellee's sister-in-law who was then sick.

That from March 1934 to December, 1934, the appellee lived in her own home [17 N.E.2d 867] at 621 Keck Avenue, but would be at the home of Carrie Kister much of the time assisting her in Carrie Kister's home, and doing whatever the decedent Carrie Kister requested the appellee to do, which conduct and actions were performed with the consent of Carrie Kister and in the carrying out of the contract which said Carrie Kister and Norma Carrie Freudenberg had made.

That on August 15, 1933, the said Carrie Kister was married to the appellant, Virgil L. Brown, who at the time had knowledge of the contract between the appellee and the said Carrie Kister.

That in December, 1934, the appellant and his wife, Carrie Kister Brown, went to Florida and the appellee and her family again took possession and occupied the property at 620 North Main Street and remained in occupancy of said property until the death of Carrie Kister Brown, which occurred on the 29th day of July, 1935.

That the said Carrie Kister Brown died without making a will and without conveying said property to the appellee.

That the appellee, during the existence of the contract, made permanent and valuable improvements on said property located at 620 North Main Street of a value in excess of $200 and demanded conveyance from the appellant, which demand was refused.

The court, upon the facts found, stated as conclusions of law that the law is with the appellee and that the appellee is entitled to the relief prayed for in her complaint, and to a decree of specific performance, and to the appointment of a commissioner to make and execute a deed conveying said real estate to the appellee. A decree was entered in accordance with the findings, a commissioner was appointed, and costs were adjudged against the appellant.

The first assignment of error discussed by the appellant is to the effect that the court erred in overruling the motion of the appellant to require the appellee to make her complaint more specific. This motion sought to have the appellee set forth in her complaint with more certainty the character of the possession of the real estate alleged to have been taken by the appellee, the acts which she performed in the services rendered the decedent, and the nature of the repairs made on the property.

It is our opinion that the complaint was sufficient to fully inform the appellant of the nature and character of the charges he was required to meet; that by the specifications of the motion to make more specific the appellant sought to have the appellee aver in her complaint mere evidential facts. The office of a pleading is to assert ultimate or issuable facts and not mere matters of evidence from which the ultimate facts may be inferred. Outing Kumfy-Kab Company v. Ivey, 74 Ind.App. 286, 125 N.E. 234.

We think there was accordingly no error in overruling the motion to make the complaint more specific.

The third assignment of error relied on by the appellant is the alleged error in overruling the demurrer to the appellee's complaint. The fifth, sixth, seventh, eighth, ninth, and tenth assignments of error challenge the correctness of the conclusion of law and the eleventh charges error in overruling appellant's motion for new trial.

All of these assignments of error bring to our consideration the sufficiency of the facts alleged in the complaint and found by the court to justify a decree of specific performance.

The appellant contends that the alleged contract to devise real estate being in parol, it falls entirely within the Statute of Frauds, Burns' Ann.St.1933, § 33-101, and that in order to remove this contract from the operation of the Statute of Frauds it is necessary for the appellee to show that she entered into the possession of said real estate pursuant to the contract and held exclusive, open, and notorious possession of the real estate involved and made valuable and lasting improvements thereon during said occupancy. The appellant contends that since the decedent, Carrie Kister Brown, continued to reside on said property and to occupy the same as her home, that the appellee never, during the time she resided with her aunt, had such possession of the premises as is sufficient in law to remove this contract from the operation of the statute of frauds.

The appellant cites many cases to the effect that specific performance of an oral contract for conveyance for real estate cannot be had in the absence of...