Copeland v. Bruning
| Decision Date | 31 March 1909 |
| Docket Number | 6,549 |
| Citation | 87 N.E. 1000,44 Ind.App. 405 |
| Parties | COPELAND ET AL. v. BRUNING ET AL., TRUSTEES |
| Court | Indiana Appellate Court |
Rehearing denied June 23, 1909, Reported at: 44 Ind.App. 405 at 417.
Transfer denied October 15, 1909.
From Clark Circuit Court; Harry C. Montgomery, Judge.
Suit by Clara Copeland and another against William H. Bruning and another, as trustees under the will of John F. Bruning deceased. From a judgment for defendants, plaintiffs appeal.
Affirmed.
Pickens, Moores, Davidson & Pickens, W. T. Friedley and Vanosdal & Francisco, for appellants.
F. Winter and Bernard Korbly, for appellees.
RABB, J. Watson, C. J., does not participate in the decision of this case.
This was a proceeding brought by the appellants against the appellees, to compel an accounting by appellees of an alleged trust claimed to have been created by the will of John Frederick Bruning, naming the appellants as the cestuis que trustent.
Each of the defendants filed separate paragraphs of answer. Appellants' demurrer to the second and third paragraphs of each of the answers was overruled, and exception reserved, and this ruling of the court presents the only question raised upon the appeal.
The will appointed appellee William H. Bruning as executor. Said will was duly probated, and appellee William H. Bruning duly qualified as executor. After the will was probated and the executor had qualified, the appellants conveyed to appellee William H. Bruning, by warranty deed, the premises mentioned and described in that provision of the will creating the trust in favor of the appellants, which deed was executed by said parties to said Bruning and received by him for the purpose of securing and indemnifying him against a liability on account of becoming surety for Mrs. Copeland upon certain notes. Afterwards, in July, 1893, the appellants commenced a suit in the Jefferson Circuit Court against appellee William H. Bruning for the partition of all of said real estate, which was, upon the petition of said Bruning, removed to the United States Circuit Court for the District of Indiana. In the complaint it was averred that John F. Bruning had died intestate, the owner in fee simple of said premises and other lands, leaving appellant Clara Copeland and appellee William H. Bruning as his sole heirs at law; that the execution of the deed last mentioned, from appellants to appellee Bruning, was procured by fraud, and that it was given to secure a debt. The appellants prayed a partition of the land, that the deed be declared a mortgage, and that an accounting be had between the parties.
To this complaint appellee Bruning answered, admitting the averments with reference to the relationship of the parties, the death of John F. Bruning, and that at the time of his death he owned the premises in fee simple; admitting the execution of the deed from appellants to said appellee, and that the deed was intended to secure said appellee as indorser for appellant Clara Copeland, as averred in her complaint, but denying that John F. Bruning died intestate, or that said deed was procured by fraud, to which pleading the appellants filed a reply.
Afterwards, in June, 1895, appellee Bruning filed a cross-complaint against the appellants, alleging that John F. Bruning died testate; that by his will he devised the land in question in the manner set forth in the answer theretofore filed, a copy of the will being made a part of the cross-complaint; that the execution to him by appellants of the deed for said premises, as set up in the original complaint and answer, and as therein also alleged, was intended as a mortgage to secure said appellee on account of his suretyship for appellant Clara Copeland on certain notes which it was averred he was compelled to and did pay; that there existed an indebtedness against the estate of the testator which the personal estate was insufficient to pay, and which was paid by appellee Bruning; that such indebtedness was a charge upon all of the real estate of the testator; that said appellee had paid taxes upon the trust property, amounting to a certain sum, and praying a foreclosure of said mortgage, and a decree of court charging a certain portion of the indebtedness and the taxes paid by him as a lien upon said trust property, and that said premises be sold to pay and discharge the sums so due him.
Upon the application of the appellees, a receiver was appointed, to receive the rents and profits of the premises pending said litigation. In said proceedings a decree was entered in favor of the appellees and against the appellants on all the issues therein presented, and a decree entered charging said trust property with the sums found due to appellee Bruning on said mortgage, taxes, and other matters claimed to be due to him against said property, and foreclosing all of appellants' right, title and interest therein, and directing the sale of said premises to pay the amount found due to said appellee; that, in pursuance of said decree, the premises were afterwards sold by the master commissioner appointed for that purpose, and appellee Bruning became the purchaser; that such sale was duly reported to the court and duly confirmed by it, and a deed to said appellee duly ordered thereon, and duly executed by said master. It further appears that appellee Horuff never accepted the trust created by said will; that appellants have received all of the rents of said trust property up to the time the receiver was appointed by the court, and that thereafter such receiver collected the rents on said property, and duly accounted for them to the court in his final report, and that after he made such final report he was discharged by the court.
It is contended by appellee Bruning that the proceedings and decree in the federal court are a conclusive adjudication of all matters sought to be determined in this proceeding, and a complete estoppel against the appellants' waging the same. Appellants, on the other hand, contend that such decree and proceedings are not such estoppel, for the reason that the appellees were not parties to the proceedings in the federal court in their capacity as trustees of the estate devised to them by the will of John F. Bruning; that is, that in appellee Bruning's cross-complaint against the appellants, to foreclose his alleged lien upon said trust property, he failed to make himself a party defendant thereto in his capacity as trustee, and that therefore the trust is not bound by the adjudication; that the decree of the court in that cause can only be considered res adjudicata against the parties in the right and capacity in which they appear in that court.
It is the settled law that parties to a judicial proceeding are bound by the decision and judgment in such proceeding, in the capacity and right in which they appear, and not otherwise. Craighead v. Dalton (1886), 105 Ind. 72, 4 N.E. 425; Erwin v. Garner (1886), 108 Ind. 488, 9 N.E. 417; Jones v. Vert (1889), 121 Ind. 140, 16 Am. St. 379, 22 N.E. 882; Johnson v. Graves (1891), 129 Ind. 124, 28 N.E. 315.
It is also equally the settled law that parties to a judicial proceeding are, in the capacity and right in which they appear, concluded by the decision and judgment rendered in such proceeding, and this includes not only questions that were actually litigated and determined, but all such as might, under the issues, have been litigated and determined between them. Fischli v. Fischli (1825), 1 Blackf. *360, 12 Am. Dec. 251, and the multitude of cases that follow it.
If the appellants succeed in this proceeding, it must be because they have a present right to demand from the appellees an...
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