Catterson v. Hall

• Decision Date: 15 February 1906
• Docket Number: No.5,559.,5,559.
• Parties: CATTERSON et al. v. HALL et al.
• Court: Indiana Appellate Court

37 Ind.App. 341

76 N.E. 889

CATTERSON et al.

v.HALL et al.

No.5,559.

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1906.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Harvey Catterson and others against George W. Hall and others. From a judgment in favor of defendant Hall, plaintiffs appeal. Reversed.

Harding & Hovey, for appellants. Taylor & Woods and Romney L. Wilson, for appellee.

WILEY, J.

Action to quiet title, in which appellants were plaintiffs below. Their complaint was in two paragraphs, the first of which was in the ordinary form for actions of this character. The second paragraph set out in full the facts upon which they based their action and claim title. In it they averred that on the 19th of September, 1890, Scott Catterson, their father, purchased certain real estate, to wit, lot 26 in E. T. Fletcher's Second Brookside addition to Indianapolis, and had the same conveyed to one Artemus Leffingwell; that on the 30th of April, 1891, at the request of said Scott Catterson, said Leffingwell, his wife joining him therein, executed and recorded in Marion county, Ind., a subdivision of said real estate into lots; that said Scott Catterson caused said real estate to be conveyed to Artemus Leffingwell in trust for him; that the purchase money therefor was paid by said Catterson, and an oral agreement made between him and said Leffingwell that the latter should hold said real estate in trust for the former; that said agreement was made without any fraudulent intent on the part of either of them to cheat, hinder, or delay the creditors of said Catterson, or of any person, and without any fraudulent intent whatever; that said Catterson died intestate May 29, 1891, being a resident of Marion county, Ind., at the time of his death, and left surviving him Ida J. Catterson, his widow, and the appellants, his children, and sole heirs at law; that after the death of said Catterson, his widow urged said Leffingwell, who was her father, to convey said real estate to her, and became so persistent in her demands that he did, on the 3d day of October, 1892, convey the same to her, without any authority for doing so under said trust; that she paid no consideration for such conveyance; that it was wholly without consideration, except as to such part of such premises as she was entitled to as the widow of her deceased husband; that thereafter, on the 24th of December, 1892, the said Ida J. Catterson intermarried with appellee George W. Hall; and that thereafter, on the 16th day of July, 1896, she being sick and not expected to live, said Hall caused instruments to be drawn up, one purporting to be a conveyance by said Ida J. Hall and himself to one Henry Wiel, by which appellee Hall claims that all said real estate was conveyed to said Wiel, and the other, a deed executed by said Wiel purporting to convey the same real estate to said Hall for an expressed consideration of $5; that in fact no consideration whatever was paid to said Ida J. Catterson for the conveyance of said real estate to Wiel, and that said deed, if executed at all, was executed without any consideration whatever; that at the time said deed was made said Hall knew that said Leffingwell had held said real estate as trustee for Scott Catterson, and after his death for his legal heirs, and not otherwise, and that he had no right to convey the same to the said Ida J. Catterson; that by reason of said conveyance the said George W. Hall now claims to be owner in fee simple of all of said real estate; that afterwards, to wit, on October 29, 1896, the said Ida J. Hall departed this life; and that thereafter the said George W. Hall intermarried with his co-appellee -Hall. Appellants then averred that said real estate belonged to their said father in his lifetime, and that through his death they each severally inherited the one-third part of the said real estate in fee simple, and that their mother, Ida J., inherited the one-third part thereof, subject to the law of descent, upon her remarriage, and that said Ida J. Hall could not, during her subsequent marriage, alienate any interest held by her in said real estate, and that upon her death appellants, as the children and heirs at law of the said Scott Catterson, inherited from said Ida J. Hall the one-third part of said real estate which was inherited by her from her former husband.

As to the complaint, the cause was put at issue by an answer in denial. The appellee George W. Hall filed a cross-complaint, setting up ownership to the real estate in controversy by deeds executed by his deceased wife and himself to one Henry Wiel, in trust, and by said Wiel, as such trustee, back to him. In his cross-complaint he avers that his said wife, before her marriage to him, had purchased the real estate from her father, Artemus Leffingwell; that at the time of said conveyance to the said Ida J. the only improvement upon said lots was a small three-room house, and that to purchase said lots and pay off the mortgage resting against the same she borrowed $500 of one Sterne, the payment of which was secured by mortgage on the property; that such cross-complainant paid off said mortgage, and said Ida J. Catterson in good faith made valuable improvements upon said lots, converting said cottage into a ten-room dwelling house, in the years 1895 and 1896; that said improvements were of a lasting character, and cost $1,200; that the cross-complainant afterward put a furnace in the house of the value of $150; that he paid sewer assessments against said lots in the sum of $120, and street improvements in the sum of $108, and improvements to the sidewalks in the sum of $220; that he paid taxes aggregating $167.20; that all of said sums of money were paid out in good faith- and prayed that he be allowed for said improvements and that he have a prior, superior, and permanent lien on said lots “before any execution shall issue on the complaint.” An answer in denial was filed to the cross-complaint.

Upon the issues thus joined, the cause was submitted to a jury for trial, resulting in a general verdict for appellants, and finding that there was due appellee, George W. Hall, the sum of $2,200. With their general verdict the jury answered interrogatories submitted to them. Appellants' motion for judgment in their favor and against appellee, on the general verdict, was overruled. Appellee George W. Hall moved in writing for judgment on interrogatories, 1, 13, and 16 in his favor notwithstanding the general verdict. This motion was sustained. Appellants moved in writing to modify the judgment, and their motion was overruled. Their motion for a new trial was also overruled. They also moved for judgment in their favor and against the cross-complainant, on his cross-complaint, for costs, upon and on account of the answers of the jury to the interrogatories submitted to and answered by them notwithstanding the general verdict, and this motion was also overruled. All these rulings adverse to appellants are assigned as errors.

The first question discussed by counsel relates to the action of the court in rendering judgment in favor of appellees on the answers to interrogatories. His motion for judgment was in writing, and was directed...