Denney v. Reber
| Decision Date | 12 December 1916 |
| Docket Number | 9,159 |
| Citation | 114 N.E. 424,63 Ind.App. 192 |
| Parties | DENNEY v. REBER |
| Court | Indiana Appellate Court |
From Jay Circuit Court; Clark J. Lutz, Special Judge.
Action by Zelpha Denney against Milton D. Reber. From a judgment for defendant, the plaintiff appeals.
Reversed.
James R. Fleming, for appellant.
John F LaFollette and Emerson McGriff, for appellee.
Moran P. J., not participating.
This is a suit by appellant, Zelpha Denney, against appellee, Milton D. Reber, to cancel and set aside a deed executed by appellant and her husband to appellee for certain real estate. The case was tried on the second and third paragraphs of complaint. An answer of three paragraphs was addressed to the second paragraph of complaint and one of two paragraphs to the third paragraph of complaint. A demurrer was sustained to the third paragraph of answer to the second paragraph of complaint. Appellant's demurrer to the second paragraph of answer to the third paragraph of complaint was overruled, to which appellant reserved an exception. Replies in general denial were filed to the affirmative paragraphs of answer. The case was tried by the court without a jury and a judgment rendered that appellant take nothing by her complaint, and that appellee recover costs. From such judgment this appeal was taken and the only error assigned is the overruling of appellant's demurrer to appellee's second paragraph of answer to the third paragraph of the complaint.
The second paragraph of complaint was drawn on the theory that the deed which appellant sought to have set aside was in fact a mortgage, executed by appellant, a married woman, to secure the debt of her husband.
The third paragraph of complaint proceeds on the theory that the deed in question was procured by the duress of appellee, and, in substance, charges that on December 30, 1912, appellant was the owner in fee simple of lot No. 7 in Meeker's addition to the city of Portland, Indiana; that prior thereto her husband, Riley H. Denney, had been employed by appellee as a salesman of cigars, and appellee then and there accused him of embezzling certain money belonging to him and unlawfully and fraudulently represented to appellant that he would cause her husband to be arrested and sent to the penitentiary unless the amount he claimed to have been embezzled was paid to him, or the real estate aforesaid conveyed to him in satisfaction thereof; that to induce her to make such conveyance appellee unlawfully promised and agreed not to prosecute her husband for said crime if she would make such conveyance; that her husband had been arrested on said charge, and was then under bond, and appellee promised her to procure the dismissal of the charge against him and to procure his release if she would make such conveyance to him; that for more than a week prior to the execution of said deed, she was in great fear, sick and confined to her bed on account of the threats against her husband, and on the date aforesaid, to prevent the carrying out of the threats of prosecution made against him, and for no other purpose or consideration whatever, she executed and delivered to appellee a deed, conveying to him the title to said real estate; that the threats and promises aforesaid, so made by appellee, were made for the purpose of cheating, defrauding and coercing appellee, and she was thereby coerced, put in fear and induced to so convey said real estate as aforesaid, and not otherwise.
The first paragraph of answer to the third paragraph of complaint was a general denial. The second paragraph of answer admits the ownership and conveyance of the real estate by appellant and alleged that the property was conveyed subject to a mortgage for $ 300 and subject to a mechanic's lien and to accrued taxes; that as a further consideration for the conveyance the parties agreed that appellant should occupy the premises and dwelling house thereon for six months without the payment of rent, at the expiration of which time she and her husband were to surrender possession to appellee; that appellant did so occupy and use said property for six months and then refused to vacate the same in accordance with the aforesaid agreement; that thereupon appellee brought suit before a justice of the peace for possession of said property, the details of which are alleged.
It is also averred that on July 10, 1913, by agreement of the parties, a judgment was duly rendered by said justice of the peace to the effect that appellee should have possession of the real estate in controversy, but provided also that if appellant should, within five days, pay to appellee $ 15 she should have the right to occupy the property until September 1, 1913; that the money was paid in accordance with said agreement; that appellant did not remove from the property on September 1, 1913, and on September 2, 1913, a writ of restitution was issued for the possession thereof and in October, 1913, appellee removed from the real estate and since that time has not occupied or used the same; that the parties to this suit are identical with the parties to the suit before the justice of the peace, and the judgment aforesaid is in full force and unappealed from. The demurrer to the aforesaid second paragraph of answer was for insufficiency of the facts alleged to constitute a defense to appellant's cause of action alleged in her third paragraph of complaint.
The memorandum accompanying the demurrer is, in substance, as follows: (1) The facts alleged do not show a former adjudication of appellant's cause of action. (2) Such facts do not constitute an estoppel against appellant. (3) The facts alleged do not show a ratification of the conveyance sought to be set aside.
Appellee does not contend that the answer is good as showing a ratification of the transaction and conveyance by which he obtained title to the property, but asserts its sufficiency both as a plea of former adjudication and as an estoppel. Neither do the averments of the answer, viewed from their general scope and tenor, indicate any other possible theory than those asserted by appellee. We shall therefore consider the answer from the viewpoint of appellee's contention as to theory.
The answer in question is not good as a former adjudication of title. The question of title was not in issue under the averments, nor does it come within the rule that questions will be deemed adjudicated which might have been litigated and settled within the issues. The justice of the peace could not have adjudicated the question of title, and had the title been put in issue before him, it would have been his imperative duty to have certified the case to the circuit court. § 1722 Burns 1914, § 1434 R. S. 1881; Deane v. Robinson (1904), 34 Ind.App. 468, 472, 73 N.E. 169; Mitten v. Caswell-Runyan Co. (1912), 52 Ind.App. 521, 525, 99 N.E. 47.
Neither do we regard the answer sufficient as a plea of estoppel. In the first place both parties to the transaction had equal knowledge of all the facts and circumstances involved in the transactions alleged. Appellee was not induced to change his position to his damage by anything said or done by appellant. He asserted his title both before and subsequent to the proceedings before the justice of the peace and the arrangement about possession of the property. Appellee's technical legal title was not, and is not, disputed by appellant; for her complaint proceeds on the theory that he has the legal title, but that it was procured by fraud and duress and should not be allowed to stand. Under such conditions the payment of the $ 15 and the occupancy of the property as alleged do not estop appellant from asserting her right to have appellee's evidence of legal title--the deed--set aside. Penn, etc., Plate Glass Co. v. Schwinn (1912), 177 Ind. 645, 656, 98 N.E. 715; State v. Mutual Life Ins. Co. (1910), 175 Ind. 59, 83, 93 N.E. 213, 42 L.R.A. (N.S.) 256; Indianapolis Traction, etc., Co. v. Henby (1912), 178 Ind. 239, 251, 97 N.E. 313; Johnson v. Spencer (1911), 49 Ind.App. 166, 171, 96 N.E. 1041; Steele v. Michigan Buggy Co. (1912), 50 Ind.App. 635, 642, 95 N.E. 435.
But appellee contends that the third paragraph of complaint is insufficient to state a cause of action, and that the demurrer to the answer should be carried back to the complaint and be sustained. A demurrer to the third paragraph of complaint was duly presented and overruled. Appellee could have assigned cross-errors, but has not done so. Whether, in such case, under our present demurrer law, the demurrer to the answer could be carried back to the complaint, and sustained, if the paragraph of complaint were insufficient, we do not decide, for the reason that we deem the paragraph sufficient to state a cause of action for procuring the deed by duress.
Appellee now asserts that the paragraph is bad for failure to aver the value of the real estate, and to show that appellee did not pay full value therefor;...
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