Geisendorff v. Cobbs
| Decision Date | 24 February 1911 |
| Docket Number | 6,877 |
| Citation | 94 N.E. 236,47 Ind.App. 573 |
| Parties | GEISENDORFF, ADMINISTRATOR, v. COBBS ET AL |
| Court | Indiana Appellate Court |
Rehearing denied May 10, 1911.
From Lagrange Circuit Court; James S. Dodge, Judge.
Action by Lee H. Geisendorff, as administrator of the estate of Lydia T. Geisendorff, deceased, against Henry G. Cobbs and others. From a judgment for defendants, plaintiff appeals.
Reversed.
Henry W. Bullock, for appellant.
Walter Olds and William A. Campbell, for appellees.
This suit was begun on May 8, 1905, in the Noble Circuit Court, by Lydia T. Geisendorff, against appellees, for partition and for the collection of rents and profits of real estate. While the suit was pending, said Lydia T Geisendorff died, and Lee H. Geisendorff was appointed administrator of her estate and substituted as plaintiff. On September 17, 1906, he filed an amended complaint, alleging that during the lifetime of decedent, she and appellees were tenants in common of certain described real estate, and that there is due to decedent's estate, for rents and profits of her portion of said real estate, the sum of $ 3,000.
Answers in five paragraphs were filed by appellees Henry G. and Mary C. Cobbs, and Henry G. and Charles C. Cobbs each filed a separate paragraph of counterclaim. Charles C. and Clara Cobbs filed answers the same as Henry G. and Mary C. Cobbs.
Demurrers were filed to each of the special answers for insufficiency of facts, and they were overruled.
Appellant replied the six-year statute of limitations to the counterclaims of Henry G. and Charles C. Cobbs. To these replies, demurrers were filed for insufficiency of facts, and sustained. Appellant filed general denials to each of the affirmative answers.
Upon a trial by the court without a jury, the judgment was for appellees, and from that judgment this appeal is taken.
Appellant has assigned as error the overruling of his separate demurrers to paragraphs two, three, four and five of the answer of Henry G. and Mary C. Cobbs, the overruling of the demurrers to the same answers by appellees Charles C. and Clara Cobbs, the overruling of his demurrers to the counterclaims of Henry G. and Charles C. Cobbs, the sustaining of the separate demurrers of each of the appellees Henry G. and Charles C. Cobbs to his reply to the counterclaims of said appellees, error of the court in making a special finding of facts after his request therefor had been withdrawn, and error of the court in overruling his motion for a new trial.
Appellees contend that appellant's brief does not comply with the rules of this court and that no question is presented for decision. The brief is not prepared in strict accordance with the rules, but a good-faith effort to comply with the rules is shown, and in such case the errors presented will be considered. Low v. Dallas (1905), 165 Ind. 392, 75 N.E. 822; Howard v. Adkins (1906), 167 Ind. 184, 78 N.E. 665; Stametz v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579; Swing v. Hill (1905), 165 Ind. 411, 75 N.E. 658.
Appellees have set out in their brief a summary of all the evidence, and under the decisions this supplies any omissions of appellant in that respect. Roberts v. Fort Wayne Gas Co. (1907), 40 Ind.App. 528, 82 N.E. 558; Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 69 N.E. 546; Tipton Light, etc., Co. v. Dean (1905), 164 Ind. 533, 73 N.E. 1082.
Objections were also made to the precipe filed by appellant's attorney, claiming that it did not authorize the clerk to incorporate into the transcript the original bill of exceptions containing the evidence. The precipe called for a transcript "including the original bill of exceptions containing the evidence," and is sufficient. § 667 Burns 1908, Acts 1903 p. 338, § 7; Workman v. State, ex rel. (1905), 165 Ind. 42, 73 N.E. 917.
The transcript shows that appellant's counsel filed a request in writing for a special finding of facts, and that before any decision was announced the request was withdrawn, and the judge thereafter made and filed a special finding of facts and stated his conclusion of law thereon.
Appellant had the right to withdraw his request for a finding of facts, and the action of the court thereafter in making such finding was not in compliance with the statute, and, under the decisions, will be considered only as a general finding. Northcutt v. Buckles (1878), 60 Ind. 577, 579; Terre Haute, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 438, 480, 65 N.E. 401; Nelson v. Cottingham (1899), 152 Ind. 135, 52 N.E. 702.
The second paragraph of answer sets up the six-year statute of limitations. The third paragraph denies that appellees were tenants in common with appellant's decedent in the real estate described in the complaint within six years next before the commencement of the action, and avers that the cause of action sued upon in the amended complaint did not accrue within six years next before the beginning of this action. The fourth paragraph of answer alleges, in substance, that appellees and said decedent were not tenants in common; that appellees, under a claim of title, have been in open, notorious, exclusive, uninterrupted and continuous possession of the real estate described in the complaint for twenty years immediately before the commencement of the suit.
The fifth paragraph of answer alleges adverse possession of the premises, under a claim of title, from 1882 to the commencement of the action; that under claim of ownership the rents were received and converted to appellees' use; that said Lydia T. Geisendorff had full knowledge of the possession and use of the premises, the collection and appropriation of the rents by appellees, their claim of ownership of the real estate and that parts thereof had been from time to time sold; that she knew appellees had made and were making valuable improvements thereon from year to year; that she at no time claimed or demanded said rents and profits or any portion thereof, and appellant is therefore estopped.
In his paragraph of counterclaim Henry G. Cobbs alleges that George W. Geisendorff, the husband of said decedent, was adjudged a bankrupt in 1872; that the real estate in question was sold by his assignee in bankruptcy; that appellees hold title by mesne conveyances from said assignee; that said George W. Geisendorff died in 1882, and at that time the real estate was wholly unimproved and had no rental value; that since 1882 the owners of said real estate have improved it, at great expense, and paid the taxes thereon in the sum of $ 1,000; that in case any rents be found due, the value of the improvements so made and the taxes paid should be set off against the amount, if any, found due to appellant.
Numerous questions are discussed by appellant, many of which need not be specifically mentioned here, but are necessarily determined by certain propositions of law which we deem applicable to the facts and issues of the case.
Under a strict application of the rules, we might refuse to consider questions arising on the pleadings, but in view of our conclusions on other questions presented, necessitating a reversal of the judgment, we deem it best for all the parties that we decide the questions arising upon the pleadings.
The original suit was for partition and an accounting for rents and profits, but the amended complaint seeks only to recover rents and profits collected from third parties, and alleges that appellant's decedent and appellees were tenants in common of certain real estate; that appellees collected all the rents and appropriated them to their own use, and upon demand refused to pay them, or any part thereof, to appellant or to said decedent.
The possession of one tenant in common is the possession of all, and the tenant in possession is not required to pay rent unless he excludes his cotenant, but if he receives rent from a third person he must account for it. Ryason v. Dunten (1905), 164 Ind. 85, 73 N.E. 74; Davis v. Hutton (1891), 127 Ind. 481, 26 N.E. 187; Schissel v. Dixon (1891), 129 Ind. 139, 152; § 290 Burns 1908, § 288 R. S. 1881; Carver v. Fennimore (1888), 116 Ind. 236, 19 N.E. 103; McCrum v. McCrum (1905), 36 Ind.App. 636, 76 N.E. 415.
By the statutes of this State, ordinary actions for the collection of rents and profits, and for the use, and occupancy of real estate are barred by the six-year statute of limitations. §§ 294, 1104 Burns 1908, §§ 292, 1058 R. S. 1881; Cowan v. Henika (1897), 19 Ind.App. 40, 48 N.E. 809.
In suits for partition it is held that where one cotenant in possession presents a claim for improvements and for taxes paid, he may be required to account for rents received from the real estate, and that in such case the six-year statute of limitations does not apply. Peden v. Cavins (1893), 134 Ind. 494, 500, 39 Am. St. 276, 34 N.E. 7; Hyatt v. Cochran (1882), 85 Ind. 231, 233; 17 Am. and Eng. Ency. Law (2d ed.) 696; Ballou v. Ballou (1897), 94 Va. 350, 26 S.E. 840, 64 Am. St. 733; Van Ormer v. Harley (1897), 102 Iowa 150, 71 N.W. 241; Fenton v. Miller (1898), 116 Mich. 45, 74 N.W. 384, 72 Am. St. 502.
But this is an independent action for the collection of rents and profits, and the six-year statute of limitations is applicable. Cowan v. Henika supra; Starks v. Kirchgraber (1908), 134 Mo.App. 211, 113 S.W. 1149. In the case of Peden v. Cavins (1893), 134 Ind. 494, 500, 39 Am. St. 276, 34 N.E. 7, it was held that an independent action to recover rents presents a different question from a suit for partition, where, under an equitable rule, rents are taken into account in determining the amount a tenant in possession should pay for improvements. The court did not err in overruling the demurrer to the second and third...
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