Costa v. Costa

• Decision Date: 20 November 1953
• Docket Number: No. 18385,18385
• Citation: 115 N.E.2d 516,124 Ind.App. 128
• Parties: COSTA et al. v. COSTA et al.
• Court: Indiana Appellate Court

Page 516

115 N.E.2d 516

124 Ind.App. 128

COSTA et al. v. COSTA et al.

No. 18385.

Appellate Court of Indiana, In Banc.

Nov. 20, 1953.

Bert F. Wood, Buena Chaney, Chaney & Wood, Terre Haute, for appellants.

Samuel E. Beecher, Jr., N. George Nasser, Terre Haute, Edward L. Hamilton, of counsel, for appellees.

KENDALL, Chief Judge.

Action by appellants in two paragraphs. First paragraph alleges that the parties to this action were the owner as tenants in common of certain real estate; that appellee, Linda Aldridge, induced appellants to convey their interest therein to her by false representations, in that she would effect an equitable division thereof among the respective owners. Appellants contend that the transfer was without consideration; that the appellees failed and refused to make division thereof and asked that a trust be declared; that the appellees be declared to hold the title to the appellants for their interest therein and for an accounting.

The second paragraph alleges substantially the same facts but asks that the deed be cancelled and set aside.

Appropriate answer was filed by appellees. Cause submitted to the court without the intervention of a jury resulting in a judgment being rendered in favor of appellees.

The error assigned by appellants is that the court erred in overruling their motion for new trial. Specifications set forth in the motion for new trial are as follows:

1. The question of the court is contrary to law.

2. The decision of the court is not sustained by sufficient evidence.

3. Error of law occurring at the trial in the court's ruling on certain objections as hereinafter discussed.

Appellees contend that the conveyance of the appellants' interest in the real estate in question was voluntary; that it was received without any fraudulent representations or agreements; that there was a sufficient consideration and that by the acceptance of the voluntary conveyance, she became the owner in fee simple of the real estate in question.

Appellants' assignment of errors contains nine specifications. In their brief, specifications four to nine, inclusive, are not discussed. Rule 2-17(e) of the Supreme Court provides as follows:

'The brief shall contain under the heading 'Argument' a specification of such of the assigned errors as are intended to be urged, and each cause in the motion for a new trial which is intended to be urged.'

Such specifications not being discussed, they are deemed waived. Rule 2-17(f), Supreme Court.

By specifications number three, appellants contend that the court erred in refusing to permit plaintiff, Louis Costa, to answer the following question in the course of his direct examination, to wit: 'What did you tell him?' Appellant made the following offer to prove, 'that he told Finimondo to sign the deed and told Finimondo Costa that he had been talking to his sister, Linda Aldridge, and to his brother, Fred Costa, and that they had said if the deed was made to Linda that they would effect a division and partition of the property by other deeds or by selling the property in an appropriate manner.' This question called for a conversation had between the plaintiff, Louis Costa, and plaintiff, Finimondo Costa, and not within the presence of the defendant, Linda Aldridge. If the witness had been permitted to answer the question, it would only have been cumulative testimony since there is evidence in the record from the plaintiff's witnesses that the transfer made to Linda Aldridge was for the purpose of effecting a partition of the real estate. It is a general rule that the exclusion of testimony is harmless where the excluded testimony is sufficiently covered by other evidence. Carp & Co. v. Meyer, 1929, 89 Ind.App. 490, 167 N.E. 151. The court did not err in sustaining the objection to said question.

There was evidence that the appellees were not told why the transfer was being made; that appellee, Linda Aldridge, did not pay the appellants any money for signing the deed; that the parties did not say anything to appellees prior to signing about a division thereof; that said parties transferring their interest 'just up and deeded the property'; that the deed was made in the office of attorney Nasser who asked plaintiff, Louis Costa, what he wanted, and that he replied that he did not want anything, he wanted her to have it and gave no reason; that an agreement was made by appellants to sign the deed over to appellees and that appellant, Costa, remembered signing the deed in the attorney's office and remembered the attorney asking him if he knew what he was doing.

Another witness testified that she heard conversations between Louis Costa and his brother and sister about settlement of the property; that she heard Linda Aldridge say she would settle with the boys but did not hear discussion as to method or manner of settling. There was further evidence that the appellee, Linda Aldridge, had paid doctor bills for a period of years for the mother of said parties and had assisted in raising the daughter of Angelo Costa.

Another witness testified that he had talked with Louis Costa about deeding the property over to appellees; that Louis Costa said, 'I am ready to go down at any time'; that there was nothing said between the witness and Louis Costa relative to the real estate being re-deeded to parties executing the deed and that the appellee was not present at the time witness and Louis Costa agreed to executed the deed.

Attorney George Nasser testified that Louis Costa came to his office with his sister, Linda Aldridge, on or about July 30, 1947; that he then prepared the quitclaim deed and that the parties sat in the office until it was completed; that the attorney read it over to Louis Costa and checked the descriptions and that he (Mr. Nasser) thought that Louis' wife was present at the time; that the attorney asked Mr. Costa if he knew what he was doing and that if the attorney's memory serves him right, Mr. Costa replied, 'Yes sir, she is entitled to all of it'; that Louis and his wife signed the deed after which the attorney notarized it and gave further instructions for other signatures.

It is to be noted that the quitclaim deed was the usual ordinary form and in itself contained no stipulations as to a trust provision or a condition about reconveying the same. The deed was made approximately two years before any litigation was instituted in the lower court. By the evidence introduced, the appellants claim to have established a prima facie case of fraud and trust and further that appellees failed to discharge the burden of establishing facts essential to substantiate the validity of the gift, and, therefore, failed to prove her title.

To establish a trust, the burden was on appellants to offer proof thereof, clear and convincing which would be unequivocable and unmistakable to sustain that conclusion. If the evidence be of such a nature that it would be incapable of a reasonable explanation, the trust theory fails. We believe that is exactly what occurred in the lower court by the judgment that was rendered. It is a well-established rule of law that to constitute a trust such as alleged by the appellants, the terms thereof must be certainly and definitely established. Bullerdick v. Miller, 1926, 85 Ind.App. 369, 152 N.E. 280.

In the instant case a great portion of the evidence was parol. Courts generally hold that to sustain a trust relation by oral evidence that the proof thereof must be clear and distinct; that it must be shown whether the trust is expressed, resulting or constructive and that the standard of evidence for such purpose is a superior measure of proof. The evidence must be higher in quality to substantiate the same--that is, in clearness, fullness and persuasiveness. Zogg v. Hedges, 1944, 126 W.Va. 523, 29 S.E.2d 871, 152 A.L.R. 991. See also Gritz, Appellant, v. Gritz, 1939, 336 Pa. 161, 7 A.2d 1, 122 A.L.R. 1297; Edmundson v. Friedell, 1928, 199 Ind. 582, 159 N.E. 428; Chechik v. Koletsky, 1924, 311 Ill. 433, 143 N.E. 66, 33...