Folsom v. Buttolph
| Decision Date | 18 March 1924 |
| Docket Number | No. 11500.,11500. |
| Citation | 82 Ind.App. 283,143 N.E. 258 |
| Parties | FOLSOM et al. v. BUTTOLPH et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Solon J. Carter, Judge.
Suit by Mabel F. Buttolph against Edson F. Folsom, and another. Plaintiff dying, her administrator, Henry W. Buttolph, and others were substituted as plaintiffs. Decree for plaintiffs, and defendants appeal. Affirmed.Jas. W. Noel, of Indianapolis, for appellants.
Miller, Dailey & Thompson, of Indianapolis, for appellees.
Complaint by Mabel F. Buttolph in five paragraphs against appellants Edson F. Folsom and his wife, Mary C. Folsom, to quiet title to certain real estate. The first paragraph alleged that plaintiff and Edson F. Folsom, hereafter designated as appellant, were the sole and only children and heirs of Mary E. R. Folsom, who died intestate in February, 1920; that on November 7, 1917, Mary E. R. Folsom was the owner in fee of the real estate described; that on said last-named day and for a long time prior thereto she was of unsound mind, aged, sick, and enfeebled in body and mind, and in such a condition mentally that she was not able to comprehend the nature of a contract or deed; that said Edson on said day through undue influence procured from his mother a deed for the real estate in question; that Mrs. Folsom when she made such deed was a person of unsound mind, and did not understand the meaning and effect of such deed, and did not know she was thereby conveying all her title and interest in the real estate to said Edson Folsom, who, at the time when said deed was executed, knew his mother was of unsound mind. A disaffirmance on the part of the plaintiff after the death of the mother, together with a demand that appellant convey to plaintiff a one-half interest in the real estate, and the refusal to make such conveyance is also alleged.
The other paragraphs are in substance the same as the first; the only difference being that they each describe different real estate, and that the deeds conveying the same to appellant were executed November 15, 1917.
The issues being closed by a general denial were submitted to a jury for trial. On the fifth day of the trial, but before the plaintiff had introduced all of her evidence in chief, she filed an application for leave to amend each paragraph of her complaint by inserting therein an allegation to the effect that she was ready and willing, and offered, in the event a verdict was rendered in her favor, that the judgment or decree of the court should be so drawn as that restitution should be made to appellants or either of them of any amount which the court might find either of them entitled to on account of any money expended by either of them for the maintenance and support of Mary E. R. Folsom after the making of the deed of conveyance, and that plaintiff had not and could not make an offer of restitution, for the reason that she had no knowledge or means of knowing the amount, if any, that appellants had expended for that purpose. Appellant's written objections to this application were overruled, and each paragraph of complaint was amended in accordance with the application. Without any further objections, or motion to discharge the jury, or to set aside the submission, the trial proceeded and resulted in a general verdict for the plaintiff.
Later the plaintiff moved for a judgment on the verdict. The court made and entered a finding that the plaintiff was ready and willing, and offered to pay defendants any amount which the court might find the defendants entitled to receive for the maintenance and support of Mary E. R. Folsom after the date the deeds were made; that Edson Folsom had expended $1,425 for the support of his mother; that plaintiff and appellant were the sole and only heirs of Mary E. R. Folsom; and that plaintiff should repay to him or to the clerk of the court for his benefit an amount equal to one-half of said $1,425 which with interest aggregated $867.60. Appellants filed a motion for a venire de novo, which was overruled, and the court thereupon entered a judgment requiring the plaintiff to pay said sum of $867.60 to the appellant. The record shows the payment of said sum to the clerk for his use, after which a judgment was entered in accordance with the verdict of the jury in favor of the plaintiff, quieting her title to a one-half interest in the real estate described in the complaint.
Appellants filed their motion for a new trial, but before the same was ruled upon the plaintiff died, and her administrator and heirs were substituted as plaintiffs, and are named as appellees on this appeal.
The errors assigned are that the court erred (1) in permitting plaintiff to amend each paragraph of her complaint during trial; (2) in overruling appellants' motion for a directed verdict; (3) in overruling appellants' motion to instruct the jury to return a verdict for appellants on the issues of fraud, coercion, and undue influence; (4) in adding to the verdict of the jury the finding of the court, and rendering a judgment on the combined verdict and finding; (5) in overruling the motion for a venire de novo; and (6) in overruling the motion for a new trial
Appellants' first contention is that the court erred in permitting the plaintiff to amend her complaint, after the cause had been submitted to the jury. In support of this contention appellants say that the cause of action prior to the amendment was an action at law and triable by jury, while the amendment changed it to an action in equity triable by the court.
[1] Appellants are correct in their contention that proceedings to quiet title are triable by jury as a matter of right. Our statutory action to quiet title combines and enlarges the equity proceedings known as bills of peace and bills quia timet. Prior to the enactment of our statute on this subject there was no such issue either at law or in equity as that which litigants arrive at in the present suit to quiet title to real property. The issue is such as the statute creates, and not such as existed under the doctrine of courts of equity. Trittipo v. Morgan, 99 Ind. 269;Johnson v. Taylor, 106 Ind. 89, 5 N. E. 732.
Suits to quiet title to real estate are triable by jury, not because they are actions at law. They are triable by jury by virtue of the provisions of section 418, Burns' 1914, which provides that:
“Issues of law and issues of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court; issues of fact in all other causes shall be triable as the same are now triable.”
See Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341.
[2] Appellants say that upon an offer of restitution a court of equity can so mould its decree as to do equity to both parties; that this cannot be done in the statutory proceeding to quiet title and that the amendment changed the proceeding to one of exclusive equitable cognizance triable only by the court. Conceding this to be true, appellants have not pointed out where or how they were harmed by reason of this amendment. They made no objection to proceeding with the trial before the jury. They made no motion to withdraw the case from the jury, or to set aside the submission. They made no request that the trial proceed before the court, without the jury. They made no application for a continuance. With their acquiescence the trial proceeded before the jury. The plaintiff concluded the introduction of her evidence in chief. Appellants then introduced evidence for several days, after which the plaintiff's evidence in rebuttal was heard.
Conceding, without deciding, that the court erred in permitting the plaintiff to amend her complaint after submission, the defendants cannot complain in this court, because of the leave to so amend, or because of the amendment, when the record fails to show, as it does in this case, by evidence or proof to, the satisfaction of the court, that they have been misled, and in what respect they have been misled to their actual prejudice, in maintaining their defense upon the merits, by reason of or on account of such amendment. As was said in the Town of Martinsville v. Shirley, 84 Ind. 546:
“In the absence of such a showing, we are bound to conclude as we now do, that the defendant was not actually prejudiced in any manner or to any extent by the plaintiff's amendments to his complaint, or by the action of the court in giving him leave to make such amendments to his complaint, or to either paragraph thereof.”
To the same effect see Whitcomb v. Stringer, 160 Ind. 82, 66 N. E. 443;Levy v. Chittenden, 120 Ind. 37, 22 N. E. 92;Darrell v. Hilligoss, etc., Co., 90 Ind. 264;Dewey v. State, 91 Ind. 173;Grand Rapids, etc., R. Co. v. Ellison, 117 Ind. 234, 20 N. E. 135;Child v. Swain, 69 Ind. 230;Burr v. Mendenhall, 49 Ind. 496.
[3] If appellants had made a timely request to set aside the submission, and for a trial by the court, or had made a motion for a continuance supported by a proper and sufficient affidavit, and exceptions had been reserved to adverse rulings, there might be some merit in their contentions. An examination of the record discloses that the only evidence of any facts pertinent to restitution or necessity of restitution was contained in the conditional examination of appellant taken on behalf of the plaintiff and which was read in evidence. There is no showing that appellants were surprised, misled, or prejudiced by the amendment, and the plaintiff alleged a sufficient excuse for not having made or having offered to make restitution before beginning her action. Appellants also argue that by the amendment their absolute right to demand trial by jury was taken away from them. The answer is that they had a trial by jury, or at least every issue they desired to have tried by jury was so tried.
No reversible error has been shown in the action of the court...
To continue reading
Request your trial