Brown v. Indiana Dept. of Conservation

• Decision Date: 20 April 1967
• Docket Number: No. 20318,No. 1,20318,1
• Citation: 225 N.E.2d 187,140 Ind.App. 638
• Parties: J. Edgar BROWN, Appellant, v. The INDIANA DEPARTMENT OF CONSERVATION, Elwood L. Brooks and Joann Brooks, Appellees
• Court: Indiana Appellate Court

Page 187

225 N.E.2d 187

140 Ind.App. 638

J. Edgar BROWN, Appellant, v. The INDIANA DEPARTMENT OF CONSERVATION, Elwood L. Brooks and Joann Brooks, Appellees.

No. 20318.

Appellate Court of Indiana, Division No. 1.

April 20, 1967.

E. Ray Barker, North Judson, for appellant.

John J. Dillon, Atty. Gen., Michael Sara, Deputy Atty. Gen., for the Indiana Department of Conservation.

FAULCONER, Judge.

This is an appeal from a judgment entered on the verdict of the jury that the title of defendant-appellee, The Indiana Department of Conservation, ¹ to certain real estate be quieted as against the plaintiffs-appellees, Elwood L. Brooks and JoAnn Brooks, and the defendant-appellant, J. Edgar Brown.

The facts surrounding the issues in this appeal can best be understood by setting forth the pertinent part of the 'Counter-Claim and Cross-Complaint' filed by appellee-Department, which is as follows:

'The Defendant, Indiana Department of Conservation, complains of the Plaintiffs and of the Cross-defendant, J. Edgar Brown, and alleges and says:

'1. That on or about the 4th day of December, 1959, the Cross-defendant, J. Edgar Brown, owned the following described premises in Pulaski County, Indiana, to wit:

(Here follows description of real estate.)

'2. That on or about December 4, 1959, Cross-defendant J. Edgar Brown executed to the Indiana Department of Conservation an option to purchase said real estate for a consideration of Twenty-five Thousand Dollars ($25,000.00), * * *. Under the terms of said option the Cross-defendant, J. Edgar Brown, reserved for himself a life lease in his house and out-buildings, and adjoining four (4) acres, so long as he maintained his legal residence on said premises.

'3. That the Indiana Department of Conservation exercised its rights under said option and fully performed all of the conditions thereof.

'4. That the Cross-defendant thereafter, on or about the 26th day of February, 1960, executed a Warranty Deed, in accordance with the terms of said option, to the Indiana Department of Conservation, conveying said real estate to Cross-complainant, the Indiana Department of Conservation, reserving only a life lease to the following-described land:

(Here follows description of real estate.)

'5. That on or about the 15th day of January, 1960, and prior to the date upon which said J. Edgar Brown executed said Deed to the Indiana Department of Conservation, said real estate was attached pursuant to the proceedings in Peru Production Credit Association, Plaintiff, vs. Frank H. Tunis and J. Edgar Brown, Defendants, Pulaski Circuit Court, Cause No. 31--147.

'6. That the Plaintiff in said Cause No. 31--147 was successful and the Indiana Department of Conservation was required to pay the sum of Two Thousand Two Hundred Thirty-six Dollars and Forty-seven Cents ($2,236.47) to prevent the sale of said land on execution, which sum represents a claim due from Cross-defendant, J. Edgar Brown and a set-off against the amount due J. Edgar Brown as consideration for his Warranty Deed to the Indiana Department of Conservation.

'7. That there remained as a charge upon said land the following:

a. $305.50 plus interest and delinquent charges for taxes upon said real estate assessed prior to the date that Plaintiffs and J. Edgar Brown executed Warranty Deeds to the Indiana Department of Conservation;

b. $27.50 for revenue stamps upon the Deed from J. Edgar Brown to the Indiana Department of Conservation.

c. $375.00, together with interest and delinquent charges for the State gross income tax upon the sale from J. Edgar Brown to the Indiana Department of Conservation.

All of said amounts are charges which constitute a lien upon the land or upon the proceeds of the sale of said land and represent a set-off against any amount due J. Edgar Brown or Plaintiffs as consideration for the Warranty Deeds to the Indiana Department of Conservation.

'8. That on or about the 2nd day of March, 1960, the Cross-defendant, J. Edgar Brown, executed a Warranty Deed to said real estate to the Plaintiffs, Elwood L. Brooks and JoAnn Brooks, husband and wife, said deed not reserving unto the Cross-defendant, J. Edgar Brown, any life estate. * * *.

'9. That the Plaintiffs, Elwood Brooks and JoAnn Brooks, conveyed said real estate to the Indiana Department of Conservation by Warranty Deed on the 2nd day of March, 1960. * * *.

'10. That the Cross-complainant has duly tendered, and still does tender, to the Cross-defendant, J. Edgar Brown, the consideration for said real estate, less charges for taxes and satisfaction of judgment liens, and was, at all times, and still is, ready, willing and able to complete said agreement, but the Cross-defendant has refused to accept payment, and that said consideration is now on tender with this Court.

'11. That the Indiana Department of Conservation is the lawful owner of said real estate and that the Plaintiffs and Cross-defendant asserts a claim, or claims, adverse thereto, which claim, or claims, are unfounded.

'WHEREFORE, the Indiana Department of Conservation prays that the title to said real estate be quieted in it forever as against the Plaintiffs and Cross-defendant, and for all other relief just and proper in the premises.'

Appellant, J. Edgar Brown, filed his answer in four paragraphs to said 'Counter-Claim and Cross-Complaint.' The first paragraph of answer is in general denial; the second, in substance, pleads that J. Edgar Brown at all times concerned and at the time of answer was of unsound mind; the third alleged, in substance, that The Indiana Department of Conservation failed to exercise the option set out, that The Indiana Department of Conservation obtained the deeds set out through fraud and misrepresentation, that the deeds are void as not the voluntary act of J. Edgar Brown, that The Indiana Department of Conservation refused to return said deeds; and the fourth alleged failure of consideration for the option and the deeds. Appellee-Department filed its reply to each paragraph of answer in general denial.

Appellant's sole assignment of error is the overruling of his motion for new trial.

Specification 1 of appellant's motion for new trial is that the verdict of the jury is contrary to law. Under this specification appellant argues that there is no evidence of a meeting of the minds because the option to purchase and the deed contain descriptions of different land and because 'the State once upon notice that J. Edgar Brown might not have the capacity to contract has the burden to deal fairly and justly with him and the burden of proof to show in fact they did, particularly when the contract remains executory in nature.' Appellant makes reference to the fact that the evidence shows that appellant was of unsound mind and, lastly, under this specification of his motion for new trial, that there was no offer and acceptance.

This court, on appeal, will reverse a judgment of the trial court as contrary to law if from the evidence reasonable minds would only reach a conclusion opposite that reached by the trial court or jury. Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669.

We have examined the evidence produced on the issue of appellant's alleged unsoundness of mind at the time of the execution of the option and deed and are of the opinion that such evidence is in conflict and is such that we cannot say, as a matter of law, that reasonable minds could only reach the conclusion that appellant was of unsound mind. We are of the same opinion concerning the issue of offer and acceptance and the voluntary execution of the instruments in question.

As to the descriptions of the land contained in the option and the deed, the law is that generally, in the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee's acceptance of the conveyance. 10 I.L.E., Deeds, § 103, p. 171. Thompson v. Reising (1944), 114 Ind.App. 456, 462, 51 N.E.2d 488 (Transfer denied). The true test of a merger is the intention of the parties. 10 I.L.E., Deeds, § 103, p. 172, supra.

Appellant under this issue in the argument section of his brief sets forth the description in the option followed by a statement that '(t)his as one can readily see is an impossible description of land in that it cannot be made to conform to any enclosure.' Appellant then follows this with the description in the deed and concludes this part of his argument as follows:

'Now, we recognize that this is a highly technical difference and we are not grasping at straws, but we ask this court to review the evidence of Mr. Scheffe on his experience as a land negotiator. This instrument was prepared by a man well familiar with land description as his testimony reveals his expertise.

'We feel that this goes without citation that there cannot be a meeting of minds in a contract when the subject matter itself is in mistake. However, we cite from corpus juris secundum Contracts Section 584 P. 1123 and 1124. (17A, C.J.S., Contracts, § 584, pp. 1123--24.)

"The party asserting the existence of a...