Brunner v. Terman, 671A112

• Decision Date: 02 December 1971
• Docket Number: No. 671A112,No. 1,671A112,1
• Citation: 150 Ind.App. 139,275 N.E.2d 553
• Parties: Thomas Wayne BRUNNER and Lucille Berniece Brunner, Appellants, v. Jerry N. TERMAN and Farmers Loan and Trust Compamy, Appellees. Thomas Wayne BRUNNER and Lucille Berniece Brunner, Appellants, v. The FARMERS LOAN AND TRUST COMPANY, and Jerry Terman and Leola Ann Carter, Appellees
• Court: Indiana Appellate Court

Page 553

275 N.E.2d 553

150 Ind.App. 139

Thomas Wayne BRUNNER and Lucille Berniece Brunner, Appellants, v. Jerry N. TERMAN and Farmers Loan and Trust Compamy, Appellees.

Thomas Wayne BRUNNER and Lucille Berniece Brunner, Appellants, v. The FARMERS LOAN AND TRUST COMPANY, and Jerry Terman and Leola Ann Carter, Appellees.

No. 671A112.

Appellate Court of Indiana, Division No. 1.

Dec. 2, 1971.

Rehearing Denied Jan. 4, 1972.

Kizer & Neu, Plymouth, Joseph R. Roe, Columbia City, for appellants.

William M. Bloom, Bloom & Bloom, Columbia City, for Jerry N. Terman.

Benton E. Gates, Sr., Richard W. Gates, Gates, Gates & McNagny, Columbia City, for Farmers Loan & Trust Co.

LOWDERMILK, Judge.

This is an appeal of consolidated cases which, by agreement, were consolidated in the trial court and by further agreement were consolidated for the appeal.

We shall refer to plaintiffs-appellants Thomas Wayne Brunner and Lucille Berniece Brunner throughout the opinion as 'Brunner'; the defendant-appellee Jerry N. Terman shall be referred to as 'Terman'; the defendant-appellee Leola Ann Carter shall be referred to as 'Carter' and the appellee Farmers Loan and Trust Company shall be referred to as the 'Bank'.

In the trial court appellants Brunner were plaintiffs in Cause No. C--68--311 upon their complaint to cancel the deed and quiet title to certain real estate and in that cause appellees Terman and Bank were defendants. Appellants Brunner were defendants in Cause No. C--68--320 and in that cause appellee Bank was plaintiff and the appellees Terman and Carter were defendants. The latter action was to foreclose a mortgage on the same real estate.

The issues were formed by the complaints and answers of these parties in the respective causes and the answer and cross complaint of Terman, defendant-appellee, and the respective answers to such cross complaint. The defendant-appellee Carter was defaulted.

The deed to the real estate in question was from Brunner, parents of Carter nee Terman, to Carter nee Terman and Terman, their son-in-law. The deed was executed and delivered to grantees on July 7, 1961 and recorded on July 17, 1961 in Whitley County.

It was for property 300 feet east and west by 150 feet north and south containing .9 acre, out of a 20 acre tract owned by Brunner and was located next door to the Brunners' home where they resided.

Brunner had built a home on this property around 1958, 59 or 60, in which he had invested $4,000 for materials and for which he made no charge for his labor, as he was a carpenter.

Terman and Carter, while man and wife, moved into the house and without knowledge of Brunner mortgaged the property for $3,500 which was used for drilling and equipping a water well. On September 22, 1965, the mortgage in question, which is being foreclosed, was executed and the balance of the old mortgage, being $2,000, was picked up by the present mortgage, which was originally in the principal amount of $6,000.00. From the last mortgage Terman and Carter received the balance of $4,000 in cash. Seven hundred dollars of this borrowed money was paid on a garden tractor, while part of the balance was used to pay for a sectional, lamp, end tables, stereo combination set, two beds, kitchen table, bookcases, et cetera.

Terman, after moving into the house, installed the furnace and some plumbing and had the well drilled and hooked up the water system, along with some other minor things at the time.

Terman and Carter were later divorced and Brunner took possession of the real estate, which was then owned by Terman and Carter as tenants in common. Subsequently, Carter conveyed her interest to Brunner. Terman's evidence was that the locks on the home had been changed and property had been taken over by Brunner without any demand having been made to Terman for possession, but he did not complain of the lack of demand for a rescission.

The note secured by the mortgage was defaulted and the Bank brought action to foreclose the mortgage. Brunner then brought an action to cancel deed and quiet title to the real estate. Terman filed a cross complaint for partition and asked for an accounting of rents and profits on the real estate from the time that another daughter and son-in-law of Brunner had lived in the property. The evidence disclosed that the other daughter and son-in-law had paid no rent on the property, but the daughter testified she intended to pay the rent at a later date.

The point of controversy in this case arises from a clause in the deed which states:

'As a part of the consideration for this Deed, Grantees do agree to take care of and assist the above named grantors in case they do need any aid during their respective lifetimes.'

After the two cases were combined for trial, without a jury, as evidenced by the pre-trial order, the trial was commenced on November 2, 1970 and judgments entered in the respective cases on the 7th day of January, 1971, which judgments read as follows, to-wit:

'BE IT FURTHER REMEMBERED that afterwards, to-wit: on the 7th day of January, 1971, before the Honorable Edward J. Meyers, Jr., Judge of said court, the following proceedings were had in said cause: C--68--311

The Court having heard the evidence in the cause herein and having read and considered the trial briefs filed by the parties now finds that part of the consideration clause in the warranty deed from Thomas Wayne Brunner and Lucille Berniece Brunner to Jerry N. Terman and Leola Ann Terman dated the 7th day of July, 1961, for the following described real estate: Commencing at the Northeast corner of the North half of the Southeast quarter of the Northeast quarter of Section Nine (9) Township Thirty-one (31) North, Range Eight (8) East, thence running West 300 feet; thence South 150 feet; thence East 300 feet; thence North 150 feet to the place of beginning, which consideration clause reads as follows, 'As part of the consideration for this deed, Grantees do agree to take care of and assist the above named grantors in case they do need any aid during their respective lifetimes,' did not create a condition subsequent and therefore the Court finds against the plaintiffs on their complaint. The Court finds for the defendant Jerry N. Terman on his cross-complaint for partition. The Court further finds that on April 22, 1968, Leola Ann Terman, then Leola Ann Carter, quit-claimed her interest in said real estate to the plaintiffs, Thomas and Lucille Brunner. The Court further finds that the plaintiffs are the owners of an undivided one-half of said real estate described in their complaint and the defendant Jerry N. Terman is the owner of an undivided one-half of said real estate. The Court finds that said real estate cannot be divided without damage to said property and the owners thereof. The Court finds that on September 22, 1965 Jerry N. Terman and Leola Ann Terman mortgaged said real estate to The Farmer Loan & Trust Company, and that said mortgage is a lien upon said real estate. The Court further finds that the plaintiffs improved said real estate in the amount of $1,357.83 and that they are entitled to recover that amount from the proceeds of the sale of said real estate.

IT IS THEREFORE ORDERED AND ADJUDGED by the Court that the following described real estate, to-wit: Commencing at the Northeast corner of the North half of the Southeast quarter of the Northeast quarter of Section Nine (9), Township Thirty-one (31) North, Range Eight (8) East, thence running West 300 feet; thence South 150 feet; thence East 300 feet thence North 150 feet to the place of beginning, be appraised by two disinterested and impartial appraisers and sold at private sale for not less than the appraised value. It is further ordered that William Bloom and Joseph R. Roe be and they hereby are appointed Commissioners to make sale of said real estate and that they give bond for not less than the appraised value to be approved by the Court.

IT IS FURTHER ORDERED AND ADJUDGED by the Court that from the proceeds of the sale that the costs of this action be first paid including the Commissioners' fees, and then the judgment recovered by The Farmers Loan & Trust Company in Cause Number C--68--320 in Whitley Circuit Court against Jerry N. Terman in the amount of $5060.47 together with attorney fees in the amount of $400.00 to be paid to law firm of Gates, Gates & McNagny; then the sum of $1357.83 paid to Thomas Wayne Brunner and Lucille Berniece Brunner, and the balance to be paid to the plaintiffs and defendant Jerry Terman in equal proportions and that a full and detailed report be made to this Court by the Commissioners.

BE IT FURTHER REMEMBERD that afterwards, to-wit: on the 7th day of January, before the Honorable Edward J. Meyers, Jr., Judge of said court, the following proceedings were had in said cause: C--68320

The Court having heard the evidence in the cause herein and having read and considered the briefs filed by the parties, now finds there is due the plaintiff from the defendant, Jerry N. Terman, on the note sued upon in the complaint the sum of $5060.47, and the further sum of $400.00 as fees for the services of plaintiff's attorney and which sum the plaintiff is entitled to recover from the defendant Terman, together with its costs of this action; and the Court further finds that said sums are secured by a mortgage upon the real estate described in plaintiff's complaint and that plaintiff is entitled to have said mortgage foreclosed as against all of said defendants herein and said real estate sold as ordered in Cause Number C--68--311 in the Whitley Circuit Court.

IT IS THEREFORE ORDERED AND ADJUDGED that the plaintiff have and recover from the defendant Jerry N. Terman the sum of $5460.47 together with costs of this action.

IT IS FURTHER ORDERED that from the proceeds of the sale of said real estate, as ordered in Cause No. C--68--311, be first applied to the satisfaction of the judgment herein after the costs...