Geisendorff v. Cobbs

• Decision Date: 24 February 1911
• Docket Number: No. 6,877.,6,877.
• Parties: GEISENDORFF v. COBBS et al.
• Court: Indiana Appellate Court

47 Ind.App. 573

94 N.E. 236

GEISENDORFF

v.COBBS et al.¹

No. 6,877.

Appellate Court of Indiana, Division No. 1.

Feb. 24, 1911.

Appeal from Circuit Court, La Grange County; J. S. Dodge, Judge.

Action by Lee H. Geisendorff, administrator, against Henry G. Cobbs and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.Henry W. Bullock and O. L. Ballou, for appellant. Olds & Niezer and Walter Olds, for appellees.

FELT, J.

This action was begun on May 8, 1905, in the Noble circuit court, by Lydia T. Geisendorff against the appellees for partition and for the collection of rents and profits of real estate. While the suit was pending the said Lydia died, and Lee H. Giesendorff was appointed administrator of her estate and substituted as party plaintiff, and on the 17th day of September, 1906, filed his amended complaint, alleging that the appellees and said decedent were tenants in common of certain described real estate during her lifetime, and that there was due her estate for rents and profits of her portion of said real estate the sum of $3,000. Answers were filed by the appellees Henry G. and Mary C. Cobbs in five paragraphs, and Henry G. and Charles C. Cobbs each filed a separate sixth 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 the same were overruled. The 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. The appellant filed general denials to each of the affirmative answers. Upon trial by the court without a jury the judgment was for the appellees, and from that judgment this appeal is taken.

The appellant has assigned as error the overruling of appellant's separate demurrers to paragraphs 2, 3, 4, and 5 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 demurrers to paragraph 6, the counterclaim 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 the reply of appellant to this counterclaim of said appellees; error of the court in making a special finding of facts after request therefor had been withdrawn by appellant; and error of the court in overruling the motion for a new trial.

The 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, 165 Ind. 392-394, 75 N. E. 822;Howard v. Adkins, 167 Ind. 184-186, 78 N. E. 665;Stamets et al. v. Mitchenor et al., 165 Ind. 672, 75 N. E. 579;Swing, Trustee, v. Hill, 165 Ind. 411, 75 N. E. 658. The 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. Ft. Wayne Gas Co., 40 Ind. App. 532, 82 N. E. 558;C., I. & E. R. R. Co. v. Wysor L. Co., 163 Ind. 288, 69 N. E. 546;Tipton L. H. & P. Co. v. Dean, 164 Ind. 533, 73 N. E. 1082.

Objections were also made to the præcipe 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 præcipe called for a transcript “including the original bill of exceptions containing the evidence,” and is sufficient. Section 667, Burns' Ann. St. 1908; Workman v. State, 165 Ind. 42-50, 73 N. E. 917.

The transcript shows that, after the introduction of the evidence, appellant's counsel filed a request in writing for a special finding of facts, and that, before any decision of the court was announced, the request was withdrawn, and the court thereafter made and filed a special finding of facts, and stated his conclusion of law thereon. The 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 decision will be considered only as a general finding. Northcutt v. Buckles et al., 60 Ind. 577-579;T., H. & I. R. R. Co. v. State, 159 Ind. 438-480, 65 N. E. 401;Nelson et al. v. Cottingham et al., 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 suit, 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 20 years immediately before the commencement of the suit. The fifth paragraph of answer alleges adverse possession of the premises from 1882 to the commencement of the action under a claim of title; that the rents were received and converted to appellee's use, under claim of ownership; 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 of the same 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. The sixth paragraph of special answer of 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 the 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 the same at great expense, setting same out in detail, and paid the taxes thereon in the sum of $1,000; that, in case any rents be found due, the value of improvements so made and the taxes paid should be set off against the amount, if any, found due 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 the same to their own use, and upon demand refused to pay the same or any part thereof to appellant or 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 et al., 164 Ind. 85-93, 73 N. E. 74;Davis v. Hutton, 127 Ind. 481, 26 N. E. 187, 1006;Schissel v. Dickson, 129 Ind. 139-152, 28 N. E. 540; Burns' Ann. St. 1908, § 290; Carver v. Fennimore, 116 Ind. 236, 19 N. E. 103;McCrum v. McCrum et al., 36 Ind. App. 636, 76 N. E. 415.

By the statutes of this state ordinary suits for the collection of rents and for the use, profits, and occupancy of real estate are barred by the six-year statute of limitations. Section 294, subsec. 2, and section 1104, Burns' Ann. St. 1908; Cowan v. Henika, 19 Ind. App. 40, 48 N. E. 809. In actions for partition it has been held that, where one cotenant in possession joins with a suit for partition 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 et al., 134 Ind. 494-500, 34 N. E. 7, 39 Am. St. Rep. 276;Hyatt v. Cochran et ux., 85 Ind. 231-233; 17 A. & E. Law, p. 696; Ballou v. Ballou, 94 Va. 350, 26 S. E. 840, 64 Am. St. Rep. 733;Van Ormer v. Harley, 102 Iowa, 150, 71 N. W. 241;Fenton v. Miller, 116 Mich. 45, 74 N. W. 384, 72 Am. St. Rep. 502. In Peden v. Cavins, supra, on page 500 of 134 Ind., on page 9 of 34 N. E. (39 Am. St. Rep. 276), the court said: “Were it an independent action to recover rents, it would present 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. This is an independent action for the collection of rents and profits, and the six-year statute of limitations is applicable. Cowan et al. v. Henika, 19 Ind. App. 40, 48 N. E. 809;Starks v. Kirchgraber, 134 Mo. App. 211, 113 S. W. 1149. The court did not err in overruling the demurrer to the second and third paragraphs of answer.

The fourth paragraph of answer sets up title by adverse possession for 20 years. The...