Culp v. Burkle
| Decision Date | 01 November 1946 |
| Docket Number | 28219. |
| Citation | 69 N.E.2d 169,224 Ind. 552 |
| Parties | CULP v. BURKLE. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Elkhart County; William E. wilder judge.
Harry E. Vernon, of Goshen, for appellant.
Proctor & Proctor, of Elkhart, for appellee.
Appellee brought this suit to set aside two certain quit claim deeds which purported to convey certain real estate to the appellant. This complaint was in four paragraphs, two of which were filed at the time the suit was commenced, and the third and fourth paragraphs subsequently thereto.
Paragraphs one and three each sought to set aside a certain deed dated April 2, 1941, and paragraphs two and four a deed dated November 22, 1943. From a judgment setting aside the first mentioned deed and reforming said last mentioned deed and quieting title in each of the parties hereto to certain interests in the real estate involved, this appeal is taken.
The facts in this case disclose that the appellee and her brother Charles Holdeman and sister Maude B. Hardesty were each the owners of an undivided one-third interest in fee simple in and to the real estate described in the complaint by virtue of inheritance from their mother and that appellant was the son of appellee; that at the time this suit was commenced there appeared of record in the recorder's office of the county where the real estate was located, each of the above mentioned quit claim deeds. The first mentioned conveyance purporting to be executed by appellee's sister and her husband conveyed a one-third interest in the said real estate to the appellant, and the second purported to be a deed executed by appellee dated subsequent to the first mentioned deed and conveying all of appellee's then or after acquired interest in said real estate to the appellant. The theory of the first paragraph of the complaint is that the appellee had purchased her said sister's one-third interest in said real estate and that the sister, along with her husband, had executed a deed to the appellee in conformity with said purchase, which deed was intrusted by appellee to an attorney for the purpose of having the same recorded which was not done, that the attorney claimed this deed had been lost and that thereafter the sister and her husband, for the purpose of replacing the lost deed, had gone to the attorney's office and executed a new deed for her undivided interest to take the place of the one that had been lost, but due to the mistake or inadvertence of the attorney appellant was named as the grantee therein instead of the appellee.
The third paragraph of complaint does not mention the lost deed referred to in the first paragraph of the complaint but merely alleges the purchase by her of said one-third interest in the real estate from her sister, and that the attorney with the connivance of the appellant had named the appellant as grantee in said deed instead of the appellee; that the appellant was so named as grantee without the consent or knowledge of the appellee and for the purpose of perpetrating a fraud upon her, that in truth and in fact she had purchased the real estate from her sister and that the deed should have named her as grantee, and that the same should be set aside and that her title in said land should be quieted.
The second paragraph of the complaint alleges that on November 22, 1943, the appellee was induced by said attorney to go to his office to sign a document prepared by him which he represented to her was for the purpose of avoiding certain inheritance taxes; that upon her arrival she was given a paper to be signed and acknowledged by her and her husband that thereupon accompanied by said attorney's secretary she went from his office to her home and there along with her husband did sign this paper which proved to be a deed for all her interests presently or after acquired in the real estate so inherited by her and her brother and sister from their mother; that she did not know the character and effect of the document she executed and did not intend to convey any of the real estate to appellant by the instrument and that the same was obtained through misunderstanding on the part of the appellee and through fraud on the part of the appellant.
The fourth paragraph of complaint, after setting out the allegations alleged in the second paragraph thereof, attempts to allege that there was fraud on the part of the appellant in inducing her to execute said document dated November 22 1943, but wholly fails to show what appellant did which constituted fraud upon the appellee. This paragraph also prays that said deed be set aside and that her title be quieted against the appellant. Neither paragraph of this complaint was tested by demurrer. The appellant filed answer to each paragraph. As no questions are raised as to the propriety of these...
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