Burgin v. Dries

• Citation: 130 Ind.App. 249,163 N.E.2d 609
• Decision Date: 20 January 1960
• Docket Number: No. 18974,No. 1,18974,1
• Parties: Charles C. BURGIN, Madge L. Burgin, Appellants, v. Frederick C. DRIES, Appellee
• Court: Court of Appeals of Indiana

Page 609

163 N.E.2d 609

130 Ind.App. 249

Charles C. BURGIN, Madge L. Burgin, Appellants, v. Frederick C. DRIES, Appellee.

No. 18974.

Appellate Court of Indiana, Division No. 1.

Jan. 20, 1960.

Wesley T. Wilson, Kivett, Bowen, Clancy & Kivett, Indianapolis, for appellants.

Garth B. Melson, Albert W. Ewbank, Indianapolis, for appellee.

AX, Judge.

Two actions were brought by appellee against appellants. One was to set aside a deed of real estate from appellee to appellants for alleged fraud, duress, and undue influence, and the other was for accounting and money alleged to have been embezzled from appellee.

The action was commenced by appellee's two complaints. The first complaint, No. 14728, to set aside a conveyance, charged that while appellee was enfeebled by a broken hip and his age of 76 years, appellants, for the purpose of defrauding him of his property, took him into their home and, by continuous, persistent, and undue persuasion, and importunity and falsely representing to him that the deed was one of trust only, induced him on March 9, 1951, to convey his real estate to appellants. Appellee asked that said deed be declared void, that the property be reconveyed to him and for $1,000 damages.

To this complaint appellants filed an answer in two paragraphs: (1) The first admitting that appellee conveyed the real estate in question to appellants while living in appellants' home some months after a hip injury, but denying that they had obtained said conveyance by undue influence or fraud or as a result of appellee's physical condition, and (2) the second alleging that the conveyance in question was in consideration of all past services rendered and expenditures made by appellants for appellee and his wife or either of them, the agreement by appellants to see to the burial of appellee at his death at a cost not exceeding $1,000 and to place a marker at appellee's grave at a cost not exceeding $300, and for the further consideration that, if appellee would transfer to appellants all his property and income, both real and personal, they would maintain him to the extent of their means for the balance of his life; that appellants accepted said conveyance and entered into said agreement in good faith and, pursuant thereto, had taken appellee into their home, where he still remained, and maintained him with facilities and care of the reasonable value of $9,000 and continuing at the rate of $50 per week, and in reliance on the validity of said conveyance had made extensive improvements on said real estate at an expenditure of $6,209.88 for materials and of labor valued at $8,742. Said paragraph asked that, if said conveyance was set aside, appellants have judgment against appellee for $14,951.88, that it be declared a lien against said real estate, and that said lien be foreclosed.

The second complaint, No. 14733, asking for an accounting and judgment on embezzled funds, charged that while appellee was in the hospital, he turned over to appellants an automobile valued at $325, cash on his person in the amount of $912, and a bank deposit of $6,060; that he had demanded of appellants an accounting of proceeds from the sale of said automobile, said bank deposit, $562 cash in appellee's bank book, $350 cash in appellee's home, $30 in appellee's dresser drawer, $196 from a certain check, $25 from sale of appellee's coal, $6 refund from Power and Light Co., $9.40 cash in appellee's clothing, $20 from the sale of a bath tub, an unknown amount from the sale of furniture, and all money received from appellee from his social security from 1948 to Dec. 1, 1954; that appellants had refused to account for said funds and had embezzled them and converted them to their own use, and that appellants had also converted to their own use certain rents collected from appellee's house at 1524-26 Supruce Street in Indianapolis; that all of said personal property was turned over and given to the appellants as trustees to hold for the appellee and all funds were to have been kept intact for appellee and placed into a lock box in trust for his benefit, but that said appellants have embezzled and unlawfully converted said monies to their own use and benefit. The appellee asked that he receive judgment against appellants in the sum of $15,000 for the unlawful embezzlement of said personal property and monies.

To this complaint, appellants filed an answer in two paragraphs. The first paragraph admitted appellee's injury and hospitalization, his ownership of the automobile and bank account, and the demand for accounting, but denied receiving any money in trust from appellee, embezzling such money, or converting any of it to their own use.

The second paragraph by way of counterclaim alleged that on or about March 5, 1953, appellants and appellee entered into an oral agreement whereby appellee should transfer to the appellants all his property both real and personal, in consideration of which appellants should acquit appellee of any past indebtedness, keep and maintain appellee within their means so long as he should live, bury him at death at a cost not exceeding $1,000, and place at his grave a marker costing not more than $300; that pursuant to said agreement appellee transferred to appellants the real estate known as 1524-26 Spruce Street, a deposit in the Merchants National Bank and Trust Co., an automobile, and social security payments totalling $667.50; that pursuant to said agreement appellants kept and maintained appellee in their home, where he had been since Sept. 2, 1952, and where he remains to this date, providing food, lodging, clothing, medical and nursing care, and other living facilities of the reasonable value of $9,000 and continuing at the rate of $50 per week, which amount appellants asked to have set off against any amount found due appellee.

Appellee failed to reply to the second paragraph of answer in either cause, and the issues were closed.

The two causes were consolidated for trial and trial was had by court without a jury, which found for the appellee in both causes, the first in Cause No. 14728, finding that the deed of conveyance was obtained from the appellee by the fraud, undue influence and misrepresentations of appellants, and ordering that said deed be set aside and appellants to reconvey said real estate to appellee, and that appellee recover his costs from appellants; and in the second Cause No. 14733, that appellee recover of appellants the sum of $5,437.20 and his costs. Judgment was rendered accordingly.

In both causes, appellants filed motions for new trials specifying several grounds, and upon the court's overruling of said motions, this appeal followed with the only assignment of error that the court erred in overruling each of appellants' motions for new trial.

For the purpose of this opinion we will first give consideration to the complaint in Cause No. 14728. The court, as stated above, found for the plaintiff-appellee that the conveyance was obtained from the plaintiff-appellee by the fraud, undue influence and misrepresentations of the defendants--appellants. Grounds numbers one and two in the motion for new trial as urged by the appellants are that the decision of the court is not sustained by sufficient evidence and that the decision of the court is contrary to law, and we will consider both of these grounds jointly. In support of these grounds of error, the appellants have argued that appellee has not shown any evidence that there was any undue influence, misrepresentation, or fraud. In the light of this contention, we are asked and find it necessary to review the evidence presented in this cause, and in view of the long-standing rule of this court, in considering the evidence we will herein consider only that evidence most favorable to the appellee.

The facts disclose that Frederick C. Dries, appellee herein, was an old man, aged about 76 years on July 25, 1952, who lived alone, except for a roomer, in one side of an old brick double house, and rented the other side to a tenant for $30 a month. Nine years before, his wife, Lyda E. Dries, had died. Within three-quarters of a block, on the same street, lived his friends, Mr. and Mrs. Charles C. Burgin, appellants herein. Burgin had known Dries for over 37 years, and had visited in his house three or four times a month.

At that time, Dries had a bank account with a balance of $6,060, cash in two envelopes amounting to $342, and an old automobile. He also was drawing Social Security benefits of $49.50 a month.

At about 10.55 P.M. on July 25, 1952, a neighbor woman knocked on the door of appellant, Burgin, and informed him that Dries had fallen and hurt himself. Burgin, who had retired, got up from bed, dressed and went over to the house of Dries where he found him with a broken hip. He called an ambulance and had Dries taken to a hospital, staying with him until all arrangements for his care had been made and returning to his own home about 4:00 A.M.

Dries was in the hospital for about six weeks and then, at his request, Burgin took him to the Burgins' home. There the appellants kept him for about seven months, without charge, giving him room and board, and some nursing care. Mrs. Burgin quit her employment at a restaurant. At the end of about seven months, the Burgins asked Dries to find accommodations elsewhere. He asked to stay and offered to convey his house to them.

On March 5, 1953, Dries conveyed the real estate to both Burgins by warranty deed and later gave Burgin the money in his bank account and his cash 'in trust' as testified to by appellee Dries. He sold his automobile for $325, and Burgin got this money. An insurance policy which Dries had on the life of his brother-in-law was cashed and the proceeds used to erect a market at Dries' prospective grave beside that of his deceased wife. As his Social Security checks were received, Dries promptly endorsed them and turned them over to the Burgins.

Dries...