Fleetwood v. Denny, 668A106

• Decision Date: 09 February 1970
• Docket Number: No. 668A106,No. 1,668A106,1
• Citation: 145 Ind.App. 404,255 N.E.2d 121
• Parties: W. Claude FLEETWOOD, Nellie M. Fleetwood, Helen F. Westlund, Appellants, v. Straussie DENNY, Ruth Wheeler, Lesta Thickston, Verl Lyon, Gene Fleetwood, Mary Margaret Layton, and Bertha Bright, Appellees
• Court: Indiana Appellate Court

Page 121

255 N.E.2d 121

145 Ind.App. 404

W. Claude FLEETWOOD, Nellie M. Fleetwood, Helen F. Westlund Appellants, v. Straussie DENNY, Ruth Wheeler, Lesta Thickston, Verl Lyon Gene Fleetwood, Mary Margaret Layton, and Bertha Bright, Appellees.

No. 668A106.

Appellate Court of Indiana, Division No. 1.

Feb. 9, 1970.

Arthur H. Northrup, Indianapolis, Allan H. Nierman, Brownstown, for appellants.

Bruce Markel, Jr., Brownstown, Arch N. Bobbitt, Indianapolis, for appellees.

ON PETITION FOR REHEARING

CARSON, Judge.

This court rendered a decision upon the merits of this cause on October 14, 1969. ¹ We now entertain appellants' petition for rehearing in which it is asserted that certain propositions properly raised by appellants were not adequately disposed of by this court. Although our ultimate disposition of the cause is not affected, we will here discuss one specification of error properly raised by appellants and not adequately covered by our opinion on the merits.

The basic controversy in this cause arises from a dispute relating to the ownership of an alleged undivided one-half interest in the property involved. That same one-half interest was claimed by plaintiffs-appellants, W. Claude Fleetwood and Nellie M. Fleetwood, and adversely by defendant-appellee, Bertha Bright. The dispute evolved as a product of a series of transactions initiated in 1928. It is contended by appellants, W. Claude Fleetwood and Nellie M. Fleetwood, that, as shown by the Deed Record of Jackson County, on April 16, 1928, the disputed one-half interest was conveyed by Bertha Allen ² and Lloyd Allen, as grantors, to grantees, James M. Fleetwood and wife and W. Claude Fleetwood and wife. That deed was recorded in the Jackson County Recorder's office on April 4, 1929. ³

Upon motion of appellees the trial court ordered an abstract of title to be filed, which served to relate the foregoing chain of title to the disputed one-half interest. On the witness stand, for the first time, Bertha Bright denied execution of the purported warranty deed dated April 16, 1928. As to the issue of title relating to the above one-half interest, the court entered its finding as follows:

'And the Court further finds that the purported Warranty Deed, dated April 16, 1928, and recorded April 4, 1929, in Deed Record 77, at page 594 thereof, in the office of the Recorder of Jackson County, Indiana, by which said deed Bertha Allen and husband, Lloyd Allen, purportedly conveyed the real estate set out in plaintiffs' complaint herein to James M. Fleetwood and wife, and William C. Fleetwood ⁴ and wife, is a forgery, of no force and effect and conveyed no title to said real estate from said purported grantors to said purported grantees.'

Appellants contend that admission of the testimony of Bertha Bright, by way of which she denied execution of the 1928 deed, was erroneous as a violation of Acts 1881 (Spec.Sess.), ch. 38, § 115, p. 240, Ind.Stats.Ann., § 2--1033, Burns' 1967 Repl., which reads as follows:

'Proof of execution of instruments--Verified plea--Exception--Right to inspection.--When a pleading is founded on a written instrument, or such instrument is therein referred to, or when an assignment, in writing, of such instrument is specially alleged in a pleading, such instrument or assignment may be read in evidence on the trial of the cause without proving its execution, unless its execution be denied by pleading under oath, or by an affidavit filed with the pleading denying the execution. And when a written instrument, or assignment, is so pleaded or referred to, proof of the names of the makers, assignors, obligors, assignees, payees or obligees shall not be necessary, unless the same shall be denied by a pleading under oath or by an affidavit filed as aforesaid. The oath, in case that the time of assignment is questioned, shall be that the party has reason to believe, and does believe, that the assignment was not made before the suit was commenced; but executors, administrators or guardians, need not deny the execution of an instrument or the assignment thereof, under oath, but the same must be proved as if it were so denied. The party shall, in all cases, be entitled to an inspection of the instrument in writing, before pleading thereto.'

The word 'pleading' is defined by statute as follows:

'Definition.--The pleadings are formal allegations by the parties of their respective claims and defenses, for the judgment of the court.' Acts 1881 (Spec.Sess.), ch. 38, § 81, p. 240, Ind.Stats.Ann., § 2--1001, Burns' 1967 Repl.

Further, it is provided by statute that:

'Allowed pleadings.--The only pleadings allowed are:

First. The complaint by the plaintiff.

Second. The demurrer and answer by the defendant.

Third. The demurrer and reply by the...