Burford v. Burford, No. 1-878A226

Docket NºNo. 1-878A226
Citation396 N.E.2d 394, 182 Ind.App. 640
Case DateOctober 31, 1979
CourtCourt of Appeals of Indiana

Page 394

396 N.E.2d 394
182 Ind.App. 640
Miles G. BURFORD, Plaintiff-Appellant,
v.
William B. BURFORD, III; Helen Danner Garrigues; H. Burford
Danner; Albert E. Metzger Wysong; Merchants National Bank &
Trust Company, As Trustee of the Non-Marital Deduction
Trust, pursuant to the Estate of Alfred L. Piel; Adele P.
Meyer, As Trustee of the Elmer W. Piel Trust; Eleanor Marie
Meyer and Adele P. Meyer; American Fletcher National Bank
and Trust Company, Trustee of the Herbert C. Piel Living
Trust; Maude Hovey Piel; Frederick C. Melcher; Theodore E.
Berg; John M. Kitchen, As Trustee pursuant to the Estate of
William E. Berg; Herbert C. Piel, Trustee of the Selma P.
Brikmeyer Trust, Lester P. Koelling; Allison P. Koelling;
Alger P. Wysong; Mary Louise (Schwier) Schuler; Vera Eleanor
(Schwier) Schuler; Carl W. Piel, Jr.; Helen S. Hegeman; Jane
and John Doe, Unknown Devisees of Alma Piel Sudbrock,
Defendants-Appellees.
No. 1-878A226.
Court of Appeals of Indiana, First District.
Oct. 31, 1979.

[182 Ind.App. 641]

Page 395

Stephen B. Cohen, Foss, Schuman & Drake, John D. Norcross, Chicago, Ill., David F. McNamar and William S. Ayres, Steers, Sullivan, McNamar & Rogers, Indianapolis, for plaintiff-appellant.

H. Earl Capehart, Krieg, DeVault, Alexander & Capehart, Heather M. McPherson, Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Indianapolis, for defendants-appellees.

NEAL, Judge.

Plaintiff-appellant Miles G. Burford appeals from the trial court's action in dismissing his amended petition for partition of real estate pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6), for failure to state a claim upon which relief can be granted.

The sole issue presented for review by this court is the correctness of the trial court's action.

The facts, gleaned from the amended petition and developed by the plaintiff-appellant's response to the several motions to dismiss, and the briefs, disclose that there are two parcels of real estate. Parcel I, in the City of Indianapolis, is owned by numerous defendants who will be referred to herein for convenience as the "Piel Family." Parcel II is adjoining real estate, the title to which is held by plaintiff-appellant, William B. Burford III (now deceased), Helen Danner Garrigues, and H. Burford Danner, each owning an undivided one-fourth, as tenants in common. For convenience we shall refer to the owners of Parcel II as the "Burford Family." The Burford Family owns no interest in Parcel I. The Piel Family owns no interest in Parcel II.

The Piel Family leased their Parcel I to S. S. Kresge Co. in 1945, and the Burford Family leased their Parcel II to Kresge at the same time, but by a separate lease. Under the terms of each separate lease, Kresge had the right to construct a six-story commercial building covering both parcels. The ownership of the building, pursuant to the terms of the separate leases, was to revert to the owners of the fee at the termination of the leases. The separate leases further contained a provision which obligated Kresge to so construct the building that the building could, with practicability, be converted into two buildings upon the expiration of the leases. Kresge failed to construct the building along the property line, so as to make two buildings. When the leases expired [182 Ind.App. 642] in 1975, both the Piel Famiy and the Burford Family made separate claims against Kresge for damages for their breach of the leases in respect to the division of the building. Kresge settled both claims separately for substantial sums, for damages incurred by the owners. This brings us to the crux of the problem. The Piel Family and the Burford Family each own a separate lot contiguous to each other and spanned by one building.

Plaintiff-appellant filed his suit for partition against his cotenants of Parcel II and the Piel Family as well. He claims that the parties entered into a joint venture by the...

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6 practice notes
  • Marriage of Dall, In re, No. 55A01-9606-CV-180
    • United States
    • Indiana Court of Appeals of Indiana
    • May 30, 1997
    ...parties.); Warner v. Young America Volunteer Fire Department, 164 Ind.App. 140, 326 N.E.2d 831, 838 (1975); Burford v. Burford, 182 Ind.App. 640, 396 N.E.2d 394, 397 (1979) (All persons having an interest in real estate are necessary parties to a partition action). Moreover, Ind.Trial Rule ......
  • Mayfair Investment Corp. v. Bryant, No. 49A02-0805-CV-398.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 2010
    ...different tracts of land by one suit was error where the cotenants of the different tracts were not the same); and Burford v. Burford, 182 Ind.App. 640, 643, 396 N.E.2d 394, 396 (1979) (holding that, where one cotenant of one parcel filed suit against his cotenants of that parcel, as well a......
  • Consolidated Rail Corp. v. Burlington Northern R. Co., No. 90-3397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 27, 1992
    ...Ind. Ry. Co., 264 N.E.2d 64, 66 (Ind.1970); Orkin Exterminating Co. v. Walters, 466 N.E.2d 55, 60 (Ind.Ct.App.1984); Barker v. Cole, 182 Ind.App. 640, 396 N.E.2d 964, 971 (Ind.Ct.App.1979); General Ins. Co. of America v. Hutchison, 239 N.E.2d 596, 599 (Ind.Ct.App.1968). However, when the co......
  • Willett v. Clark, No. 82A01-8808-CV-273
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1989
    ...jointly-owned real and personal property, which, as co-tenants, they had a right to do. IND.CODE 32-4-5-1; Burford v. Burford (1979), 182 Ind.App. 640, 396 N.E.2d 394. Also, while we are unaware of any Indiana appellate decisions sanctioning partition of personal property, the general rule ......
  • Request a trial to view additional results
6 cases
  • Marriage of Dall, In re, No. 55A01-9606-CV-180
    • United States
    • Indiana Court of Appeals of Indiana
    • May 30, 1997
    ...parties.); Warner v. Young America Volunteer Fire Department, 164 Ind.App. 140, 326 N.E.2d 831, 838 (1975); Burford v. Burford, 182 Ind.App. 640, 396 N.E.2d 394, 397 (1979) (All persons having an interest in real estate are necessary parties to a partition action). Moreover, Ind.Trial Rule ......
  • Mayfair Investment Corp. v. Bryant, No. 49A02-0805-CV-398.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 2010
    ...different tracts of land by one suit was error where the cotenants of the different tracts were not the same); and Burford v. Burford, 182 Ind.App. 640, 643, 396 N.E.2d 394, 396 (1979) (holding that, where one cotenant of one parcel filed suit against his cotenants of that parcel, as well a......
  • Consolidated Rail Corp. v. Burlington Northern R. Co., No. 90-3397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 27, 1992
    ...Ind. Ry. Co., 264 N.E.2d 64, 66 (Ind.1970); Orkin Exterminating Co. v. Walters, 466 N.E.2d 55, 60 (Ind.Ct.App.1984); Barker v. Cole, 182 Ind.App. 640, 396 N.E.2d 964, 971 (Ind.Ct.App.1979); General Ins. Co. of America v. Hutchison, 239 N.E.2d 596, 599 (Ind.Ct.App.1968). However, when the co......
  • Willett v. Clark, No. 82A01-8808-CV-273
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1989
    ...jointly-owned real and personal property, which, as co-tenants, they had a right to do. IND.CODE 32-4-5-1; Burford v. Burford (1979), 182 Ind.App. 640, 396 N.E.2d 394. Also, while we are unaware of any Indiana appellate decisions sanctioning partition of personal property, the general rule ......
  • Request a trial to view additional results

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