Daugherty v. Daugherty
| Decision Date | 24 November 1944 |
| Docket Number | 17260. |
| Parties | DAUGHERTY et al. v. DAUGHERTY et al. |
| Court | Indiana Appellate Court |
Sumner Kenner, Lawrence E. Carlson, and Herbert B. Spencer, all of Huntington, for appellants.
C W. H. Banks and U. S. Lesh, both of Huntington, for appellees.
This is an action brought by appellees (except appellee Exchange Bank of Warren) against appellants to set aside a certain deed to an 80-acre farm and for an accounting of rents and profits.
Hereinafter when the term appellees is used it shall refer to all appellees except the Bank; the term appellant will be used to refer to appellant Leroy Daugherty.
The amended paragraph of complaint was in four paragraphs alleging undue influence in the execution of a deed by Thomas B. Daugherty to an 80-acre farm to appellants, that said grantor was at the time of unsound mind, that the deed was not duly executed, and that appellees and appellant in fact owned the farm as tenants in common, and that appellees were entitled to partition thereof and for a decree quieting their title, and for an accounting against appellants.
Appellants filed motions to require appellees to make paragraphs two and three of their amended complaint more specific, and also to require appellees to separate and paragraph causes of action. These motions were overruled by the court.
Appellants filed an answer in favir paragraphs. The first four paragraphs of appellants' answer were answers under the rules in which they either admitted or denied the several allegations of facts set out in the various rhetorical paragraphs of appellees' complaint and the several paragraphs thereof. In appellants' fifth paragraph of answer they set out a certain contract which they claim was entered into with Thomas B. Daugherty, father of appellant and appellees, and which stated the consideration for the deed, and which contract they claim was fully performed. Appellants also filed a cross-complaint in one paragraph against the appellees herein, in which they claim to be the owners of the farm in controversy and ask that their title to same be quieted as against said appellees.
Appellees filed separage replies to the answer of appellants, and to appellants' cross-complaint.
Appellee Exchange Bank of Warren filed a separate answer in four paragraphs to the several paragraphs of appellees' amended complaint, in which they disclaim any interest in the farm.
Upon proper request the court made a special finding of facts and stated its conclusions of law therein, as follows:
1. The deed of conveyance executed by Thomas B. Daugherty is invalid and should be held for naught.
2. The mortgage executed by appellants to appellee Exchange Bank of Warren is void and should be cancelled.
3. Appellant and appellees are the owners of the described real estate in fee simple as tenants in common, each owning an undivided one-seventh therein, except that appellees are entitled to a lien on the interest of appellant in the sum of $223.85.
4. Appellees are entitled to have their titles to their respective shares quieted against all claims of appellants.
5. Appellees are entitled to have partition of said lands and the appointment of a commissioner to sell same, etc.
The assignment of errors here is as follows:
(1) The court erred in overruling the motion filed by appellants to require the appellees to make paragraphs two and three of their amended complaint more specific.
(2) The court erred in overruling the motion filed by appellants to require appellees to separate and paragraph causes of action.
(3) The court erred in its conclusion of law numbered one.
(4) The court erred in its conclusion of law numbered two.
(5) The court erred in its conclusion of law numbered three.
(6) The court erred in its conclusion of law numbered four.
(7) The court erred in its conclusion of law numbered five.
(8) The court erred in each of its conclusions of law.
(9) The court erred in overruling the separate motion for a new trial filed by appellants Leroy Daugherty and Thelma Daugherty.
The motion for a new trial contains four specifications, as follows:
(1) That the finding of the court is not sustained by sufficient evidence.
(2) That the finding of the court is contrary to law.
(3) Error in the assessment of the amount of recovery, in this, the amount is too large.
(4) The court erred in admitting and reading in evidence over the separate objection of appellants Leroy Daugherty and Thelma R. Daugherty the following evidence:
An envelope with cancelled U. S. registered postage, and letter from appellees to appellants disaffirming the deed in controversy.
We proceed to a consideration of the questions presented in the order of their presentation.
In their motion to require appellees to make their complaint more specific, appellants ask the trial court to require appellees to set out rhetorical paragraphs 1, 2, 4, 6 and 7 of the first paragraph of complaint which appellees had made part of their second and third paragraphs of complaint by reference.
Section 2-1006, Burns' 1933, authorizes the incorporation in a pleading of parts of a prior paragraph by reference and identification without repetition of the language employed in the first instance. Appellants contend that this provision of the statute has been repealed by Rule 1-3 of the Supreme Court Rules (1943 Revision), the pertinent provision of which is as follows:
'The party answering or replying to a pleading shall state, without enlargement or elaboration, that he (1) admits, (2) denies, or (3) is without information as to the facts stated in each rhetorical paragraph or each designated part of such paragraph'.
We do not agree with appellants' interpretation of this rule, and hold it was not error to overrule the motion to make more specific.
Appellants next contend the trial court erred in overruling their motion to require the appellees to separate and paragraph causes of action. In this motion appellants aver 'The fourth paragraph of plaintiffs' amended complaint contains two causes of action, one to quiet title and one in partition'. If it was error to overrule this motion, the error was harmless. Pierce et al. v. Walton et al., 1898, 20 Ind.App. 66, 80, 81, 50 N.E. 309, and authorities there cited.
Assigned errors 3, 5, 6, 7, and 8 require a consideration of the special findings of fact. The trial court made fifteen findings of fact, which were substantially as follows:
(1) That Thomas B. Daugherty was the owner of certain described real estate on the 28th day of June, 1941, which had a value of $8000.
(2) Said Daugherty died intestate on October 12, 1942, leaving as his heirs at law the parties hereto, except Exchange Bank of Warren, without having disposed of said real estate other than by the conveyance here questioned.
(3) On June 28, 1941, said Daugherty executed a deed of said lands to appellants, which deed was recorded on October 10, 1941. At the time of the execution of the deed said Thomas Daugherty and appellants executed a contract as stated in appellants' fifth paragraph of answer (which contract is set out in full immediately following these findings).
(4) At the time of the execution of the instruments referred to in Finding No. 3, said Daugherty was over 86 years of age. For many years prior thereto he had suffered from an illness of rheumatic character which incapacitated him from walking without a cane, from cataracts on both eyes which made it difficult for him to read ordinary type, and from the infirmities of old age, from all of which his health in both mind and body was so impaired as to incapacitate him from managing his business affairs.
(5) Because of the infirmities stated in Finding No. 4, appellees brought proceedings in the trial court to obtain a guardian to manage the business affairs of said Thomas B. Daugherty, in which proceedings a trial was had before the court and jury, resulting in a disagreement of the jury. Said action was pending in said court without further trial at the time of the execution of the deed and contract referred to in Finding No. 3.
(6) Several months prior to March 1, 1940, said Thomas Daugherty was, at his request, brought to the home of appellee Perry Daugherty, at which time appellants were living on the land in controversy, and on the representations of said Thomas Daugherty that appellant was intending to move off of said land and that if he, Perry Daugherty, would take possession and conduct farming operations on terms offered and make a home for said Thomas B. Daugherty, that said Perry Daugherty could remain on said land as long as the father lived. That said Perry Daugherty consented to and did move on said farm in February, 1941, remaining there until November, 1941.
(7) For some time prior to June 28, 1941, appellant made visits to his father Thomas B. Daugherty, and during the period of several weeks prior to said date the visits were almost daily, at which times they would have their visits in a separate room provided for said Thomas Daugherty. No mention was made to appellee Perry Daugherty or to any member of his family of any purpose or plans to make any different arrangements for the ownership or occupancy of said farm, nor did he learn of any desire on the part of said Thomas B Daugherty that he should vacate said farm in order to enable appellants to return until in August after the execution of said deed, when he was told he was no longer wanted on said farm; that for a stipulated consideration as an inducement for yielding possession in advance of the end of the fiscal farming year, said Perry Daugherty removed from said farm in November, 1941, and appellants returned to said farm and...
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