Gish v. St. Joseph Loan & Trust Co.

• Decision Date: 27 June 1916
• Docket Number: No. 9126.,9126.
• Citation: 66 Ind.App. 500,113 N.E. 394
• Court: Indiana Appellate Court
• Parties: GISH v. ST. JOSEPH LOAN & TRUST CO.

66 Ind.App. 500

113 N.E. 394

GISH

v.ST. JOSEPH LOAN & TRUST CO.

No. 9126.

Appellate Court of Indiana, Division No. 1.

June 27, 1916.

Appeal from Circuit Court, Laporte County; James F. Gallaher, Judge.

Action by Christian P. Gish against John L. Gish, in which the St. Joseph Loan & Trust Company, trustee under plaintiff's will, was substituted as plaintiff upon the latter's death. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Hickey & Wolfe, of Laporte, and Graham & Crane, of South Bend, for appellant. Osborn, McVey & Osborn, of Laporte, and Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellee.

FELT, J.

Christian P. Gish, the father of appellant, brought this action against the latter to set aside certain deeds and leases upon the ground that they were procured by fraud. Christian P. Gish died before the trial, and by order of court appellee, trustee under the will of said decedent, was substituted as plaintiff. The action was commenced in the St. Joseph circuit court, and was venued to the Laporte circuit court where the case was tried by the court. Upon request a special finding of facts was made on which the trial court stated its conclusions of law. Appellant excepted to each of such conclusions, and also to the overruling of his motion for a new trial. Judgment was rendered for appellee in accordance with the prayer of the complaint.

[1] The first error on the overruling of the demurrer to the special reply is waived by failing to set out the demurrer or its substance and in failing to consider the question in the briefs.

[2][3] Several of the assignments of error present no question for review. Some of them are grounds for a new trial only, and cannot properly be assigned as independent error. Some allege the overruling of motions to strike out parts of the special finding of facts, and to make the findings more specific. The rulings on these and similar motions are not recognized by our practice as means of presenting reversible error. Delaney v. Gubbins, 181 Ind. 188, 195, 104 N. E. 13;Meridian Life, etc., Co. v. Eaton, 41 Ind. App. 118, 121, 81 N. E. 667, 82 N. E. 480;Gaslight, etc., Co. v. City of New Albany, 158 Ind. 268, 273, 63 N. E. 458;Gates v. Baltimore, etc., R. Co., 154 Ind. 338, 343, 56 N. E. 722.

The errors properly assigned and not waived are error in each of the first and second conclusions of law, on the amended special finding of facts, respectively, and overruling the motion for a new trial.

The substance of the complaint is accurately stated by appellant in his brief as follows:

“That on the 17th day of August, 1905, plaintiff was the owner of certain real estate in the city of South Bend, St. Joseph county, Ind., on which there were certain improvements, that Christian P. Gish was past the age of 85 years, and was in feeble health, and that appellant had gained control by reason of confidential relations existing between them, and had fraudulently and without consideration induced Christian P. Gish to execute deeds, leases, and assignments of leases mentioned in the complaint, and asks for the cancellation of same.”

The complaint further shows that appellant was the only son of the deceased, was a practicing physician and a shrewd business man of learning and ability; that his father believed him to be honest, and relied upon and confided in him in the transaction of his business; that he had gained complete mastery over his father; that decedent had two daughters, a grandchild, whose father was dead, and a childless second wife; that appellant designed to obtain all of his father's property, and in pursuance of such design fraudulently on various occasions and pretexts prepared papers for decedent's signature, falsely representing that such papers were necessary to enable appellant to carry out some matter pertaining to his father's business, which he was then transacting; that in further pursuance of said fraudulent design and purpose appellant did prepare, in his own handwriting, two warranty deeds for property which had an annual rental of $5,000, conveying such property from decedent to appellant; also two 99-year leases for the same property, at a yearly rental of $1 each; that each of said papers was prepared by appellant with the fraudulent intent and purpose of securing decedent's signature thereto at such time or times as appellant should find favorable opportunity; that decedent was illiterate, and at the times in question could not read script or write his name without great difficulty, all of which facts were fully known to appellant; that at different times while appellant was acting as the representative and adviser of decedent, and transacting all of his business, he presented said deeds and leases to decedent and demanded and obtained his signature thereto upon the fraudulent pretext and representation that the same were papers necessary for decedent to sign to permit appellant to carry out and perform the business affairs of decedent intrusted to him; that decedent signed the same fully believing that they were of the character so represented by appellant, and without any knowledge of their true character, and for no other purpose whatever; that decedent received no consideration whatever for the execution of either of said deeds or leases; that appellant withheld such instruments from record, and thereafter continued to advise and direct decedent in the management of his property, made no claim thereto, and did not by word or conduct on his part give decedent any intimation that he claimed any title or interest thereto; that decedent continued to receive the rents and profits of said property until he went temporarily to California in 1909, when he authorized appellant to collect the same, and he has since continued to do so; that said instruments were so procured from 1905 to 1908, but were not recorded until February, 1913; that decedent learned for the first time of the existence and nature of said instruments shortly after they were recorded; that he thereupon demanded of appellant a return of his property and a cancellation of said instruments, all of which was refused by appellant, and thereupon decedent instituted this suit.

Appellant's second and third assignments of error challenge the correctness of each of...