C. Callahan Co. v. Lafayette Consumers Co.
| Decision Date | 01 July 1936 |
| Docket Number | 15149. |
| Citation | 2 N.E.2d 994,102 Ind.App. 319 |
| Parties | C. CALLAHAN CO. v. LAFAYETTE CONSUMERS CO. |
| Court | Indiana Appellate Court |
Appeal from Clinton Circuit Court; Paul E. Layman, Judge.
Action by the Lafayette Consumers Company against the C. Callahan Company, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.
Affirmed.
Randolph & Randolph, of La Fayette, for appellant.
Stuart, Stuart & Devol, of La Fayette, for appellee.
Appellee as lessee, brought suit against the appellant for possession of certain real estate in the city of La Fayette, and for damages for the alleged wrongful and forcible eviction of appellee therefrom, and the wrongful and forcible detention of the possession thereof by appellant. From a judgment in favor of appellee, this appeal is prosecuted.
The issues consisted of what the parties have designated as an amended and supplemental complaint in three paragraphs; the first was in the usual form for possession of real estate and for damages for the unlawful and forcible entry therein and detention thereof; the second and third paragraphs were quite similar in their allegations, each setting out in detail the various transactions through which the appellee traced the source of its alleged interest in and right to possession of said real estate. The appellant filed an answer in general denial to each paragraph of this complaint. It also filed a separate verified second paragraph of answer to the second and third paragraphs of complaint in which it denied the execution of certain written documents set out as exhibits to each of said paragraphs of complaint on which the appellee based his alleged interest in and right to possession of said real estate. It also filed a separate third paragraph of answer to the second and third paragraphs of complaint in which it alleged that it was the purchaser for value in good faith and without notice or knowledge of any claim, right, or interest of appellee in and to said real estate. Appellant also filed a counterclaim against appellee in which it alleged that it was the owner in fee simple of the real estate in question, and sought to have its title quieted therein as against the appellee. Appellee filed a separate paragraph of reply in general denial to appellant's third paragraph of answer to appellee's second and third paragraph of complaint, and a reply in general denial to appellant's counterclaim.
On these issues the cause was tried to the court without the intervention of a jury. The court made a general finding for the appellee, and rendered judgment in its favor. The appellant filed a motion for a new trial within the statutory period of time, which motion was overruled. The only error properly assigned requiring our consideration is the overruling of the motion for a new trial, in which appellant alleged 66 separate causes therefor, which will be disposed of in the order in which they are presented and discussed in that portion of appellant's brief devoted to " Propositions, Points and Authorities."
It is appellant's first contention that the decision of the court is not sustained by sufficient evidence and is contrary to law. Under this contention appellant asserts that it was a bona fide purchaser for value of the fee-simple title to the real estate by a warranty deed from the holder of the record title without notice of appellee's alleged interest therein; that the appellee claimed to be an assignee of a leasehold interest in said real estate through unrecorded instruments; that the appellee assumed many conflicting positions after appellant acquired the fee-simple title to the real estate in May, 1925; and that appellee failed to prove that the assignment of the lease under which it claimed its right of possession to the real estate had ever been properly executed.
While there are many questions presented by the record for our consideration, the ultimate determination of the rights of the parties to this controversy is dependent upon the answer to be made to the query, whether or not, under the facts and the law applicable thereto, the trial court was warranted in finding and adjudging that the appellant had actual knowledge of appellee's alleged interest in and right to possession of the real estate, as well as whether it had constructive notice thereof, sufficient to put it on inquiry previous to the purchase and payment of the consideration for the real estate in May, 1925.
The evidence is voluminous and covers a broad field of inquiry; to attempt a complete summary thereof would unduly prolong this opinion and serve no good purpose. An examination of the record discloses that some of the facts are not controverted. We set them out as briefly as their substance will permit.
In May, 1906, one William A. Wildhack became the owner, subject to certain existing leases of the real estate concerning which this litigation is being waged. September 6, 1906, Wildhack, as lessor, entered into a written contract with Born & Co., a La Fayette corporation, as lessee, under the terms of which the lessor leased the real estate to the lessee for a period of 25 years, from that date, or to September 6, 1931. The conditions contained therein necessary to be considered here were: That the lessee should pay to the lessor as rent for the use of said real estate the sum of $60 per annum, payable in advance on the 6th day of September of each year during the term of the lease; also all taxes, assessments, license fees or other charges made against said premises, or any improvements placed thereon, including any special assessments for paving or sewage, levied and payable during the term of the lease. The lessee was also required within one year from the date of the lease to erect substantial buildings and other improvements on the leased premises to cost not less than $15,000 to be built and maintained subject to the satisfaction of the lessor. The lease was not to be assigned, nor said premises or any part thereof subleased or occupied by any party other than the lessee without the written consent of the lessor or his assignees. It was expressly stated and understood that the lessee was fully informed that the Lake Erie & Western Railroad Company had an interest in the leased premises held by Wildhack in trust for the railroad company, and that the lease should be binding against the lessee in favor of the railroad company to the same extent as though it had been a party to the execution of the same, and that said lease should be binding against the railroad company in favor of the lessee in the same manner as if it had been a party thereto. Upon the failure of the lessee to perform the conditions of the lease, it could be terminated by the lessor, in which event all permanent improvements placed upon the premises should become the property of the lessor, and likewise at the termination of the lease by expiration of time said improvements were to become the property of the lessor. The lessee had the right to extend the lease for an additional period of 25 years from the date of its expiration, if the election was made in writing and served on the lessor not less than 30 days prior to the date of expiration. The lease was binding upon the successors or assigns of the original parties thereto. It was acknowledged by the respective parties and properly recorded October 12, 1906.
September 6, 1906, the Lake Erie & Western Railroad Company, as the first party, and Born & Co., as the second party, entered into a written contract for the erection, maintenance, and use of a side track and trestle upon the premises leased by Born & Co. from Wildhack; this contract to continue during the same period of time as the lease from Wildhack to Born & Co. It was made with the approval and affirmance of Wildhack. The execution of this contract was acknowledged by Born & Co. It was not acknowledged by the railroad company. It was recorded October 6, 1906. This document was identified as Plaintiff's (Appellee's) Exhibit B at the trial of this cause, and was admitted in evidence over the objection of appellant.
January 28, 1920, Luke H. Balfe, William R. Coffroth, and Frank Dienhart, as first parties, Edward Born and Isaac Born, as second parties, and Samuel T. Murdock, as third party, entered into a written contract, under the terms of which the first parties agreed to have certain physical properties of the Lafayette Artificial Ice Company, and the second parties agreed to have certain physical properties of Born & Co., and the lease from Wildhack to Born & Co., excepting certain elevator properties with right of ingress and egress thereto, retained by Born & Co. transferred to the third party, who, in consideration thereof, agreed to have a corporation organized for the purpose of operating an ice and coal business in the city of La Fayette; 45 per cent. of the stock of the new company to be issued to each of the first and second parties, and 10 per cent. to the third party. The execution of this contract was not acknowledged, and it was not placed on record. Samuel T. Murdock died intestate March 21, 1921, and this document was found after his death among some of his papers and personal effects in the Merchants National Bank in Indianapolis. This document was identified as Plaintiff's (Appellee's) Exhibit O at the trial of this cause, and was admitted in evidence over the objection of appellant.
April 1, 1920, Born & Co., by Edward Born, as president, for the expressed consideration of $1, executed a written assignment of all right, title, and interest in the lease entered into by it with Wildhack and the Lake Erie & Western Railroad Company on September 6, 1906, to Samuel T. Murdock, his heirs and assigns....
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