Gorby v. McEndarfer

Decision Date15 July 1963
Docket NumberNo. 19666,No. 1,19666,1
Citation135 Ind.App. 74,191 N.E.2d 786
PartiesClaude GORBY, Agnes Gorby, Appellants, v. Raymond McENDARFER, Appellee
CourtIndiana Appellate Court

George Sands, South Bend, for appellants.

Lenn J. Oare, William J. Reinke, of Oare, Thornburg, McGill & Deahl, South Bend, for appellee.

CARSON, Presiding Justice.

This was an action to quiet title to a tract of land. The cause was tried in the St. Joseph Superior Court No. 2 without a jury and upon a stipulation of facts which stipulation reads as follows:

'It is agreed and stipulated by and between the parties that the following facts are admitted as true, and shall constitute the evidence in this case:

'ONE By a special warranty deed dated July 2, 1902, and recorded July 10, 1902, in Deed Record 122, at page 411 of the Recorder's office, St. Joseph County, Indiana, Charles Edward Early and Ella Early, his wife, acquired the following described real estate, situated in St. Joseph County, State of Indiana, to-wit:

'The east half of the southwest quarter, and the west half of the northeast quarter of Section 32, Township 36, north Range One east, containing 160 acres, more or less.

'TWO That all of the real estate which is the subject of this cause of action is located in said northeast quarter of the southwest quarter of said Section 32.

'THREE That subsequent thereto the said Charles E. Early was divorced on the complaint of his wife, Ella Early, and the bonds of matrimony thereto fore existing between the parties were dissolved, and the plaintiff, Ella Early granted a divorce from the defendant by order of the St. Joseph County Circuit Court in Number 20755, dated May 28, 1925, and thereafter on the same date the said Charles E. Early, single and of full age, did convey to Ella Early by means of a quit claim deed recorded in Deed Record 190, at page 430, of the Recorder's office of St. Joseph County, Indiana, a tract of land desdribed (sic.) as follows, to-wit: A tract of land containing 90 acres in a rectangular form taken off of and from the entire length of the north end of the following described tract of land, to-wit: The east half of the southwest quarter, and the west half of the southeast quarter of Section 32, Township 36, north, Range One east, situated in St. Joseph County, State of Indiana.

'That said Ella Early is common grantor in chain of title to all of the real estate claimed by the litigants in this proceeding;

'That the said Ella Early held full legal title in fee simple absolute as an unmarried female of full age at the time of making the respective conveyances hereinafter set forth.

'FOUR That on the 22nd day of February, 1941, Ella Early did deed and convey to Willard Whitmore and Gertrude Whitmore, husband and wife, by deed recorded in Deed Record 330 at page 333 of the records of the County Recorder of St. Joseph County, Indiana, the following described real estate, to-wit: Commencing at the northwest corner of the east half of the southwest one quarter of Section 32, Township 36, north Range One east, thence running south 118 feet, thence east to the Liberty Highway or State Road Number 23, thence northerly along the west line of said highway to the north line of the southwest quarter of said Section; thence due west 1854 feet to the place of beginning, containing five acres more or less.

'FIVE That by warranty deed dated September 16, 1941, and recorded in Deed Record 338 at page 140 of the records of St. Joseph County State of Indiana, Ella Early conveyed by warranty deed to Charles Clifford Lawson, Jr. the following described real estate situated in St. Joseph County, State of Indiana, to-wit: Commencing on the south line of a tract of land conveyed to Willard Whitmore by Ella Early by deed dated February 22, 1941, at a point 118 feet south of the north line of the east half of the southwest quarter of Section 32, Township 36 north, Range One east and 544 feet west of the public highway or State Road Number 23, thence south 120 feet; thence east to the said highway; thence following said highway in a northeasterly direction to a point due east of the place of beginning, thence west 544 feet to the place of beginning, containing 1 1/2 acres, more or less.

'SIX That on the 14th day of November, 1944, Charles Clifford Lawson, Jr., and Rozella M. Lawson, husband and wife, by warranty deed recorded in Deed Record 380, at page 265, in the office of the Recorder of St. Joseph County, conveyed to Claude Gorby and Agnes Gorby, husband and wife, the defendants herein, the following described real estate: Commencing on the south line of a tract of land conveyed to Willard Whitmore, by Ella Early by deed dated February 22nd, 1941, at a point 118 feet south of the north line of the east half of the southwest quarter of Section 32, Township 36 north, Range One East, and 544 feet west of the public highway or State Road 23, thence south 120 feet; thence east to the said highway; thence following said highway in a northeasterly direction to a point due east of the place of beginning, thence west 544 feet to the place of beginning, containing 1 1/2 acres, more or less; in Liberty Township.

'SEVEN That thereafter, to-wit, on the third day of May, 1945, by warranty deed recorded in Deed Record 386, at page 403, in the office of the Recorder of St. Joseph County, Ella Early, unmarried and of full legal age, conveyed to Claude E. McEndarfer and Mildred McEndarfer, husband and wife, the following described real estate situated in St. Joseph County, State of Indiana, to-wit:

'A parcel of land in the northeast quarter of the southwest quarter of Section 32, Township 36 north, Range 1 east, containing 6.64 acres, bounded by a line described as beginning at an iron stake in the west line of the aforesaid northeast quarter of the southwest quarter of the aforesaid Section 32 at a point 118 feet south of the northwest corner of the aforesaid northeast quarter of the aforesaid southwest quarter of said Section 32, thence east and parallel with the east and west center line of said Section 32, a distance of 1277.6 feet to an iron stake; thence south and parallel with the west line of said northeast quarter of the southwest quarter of said Section 32, a distance of 226.4 feet to an iron stake; thence due west and parallel with the first described line 1277.6 feet to the west line of the northeast quarter of the southwest quarter of said Section 32; thence north on the west line of said northeast quarter of the southwest quarter of said section, 226.4 feet to the place of beginning.

'EIGHT That thereafter, to-wit, on the 17th day of March, 194, Claude E. McEndarfer and Mildred B. McEndarfer, husband and wife, conveyed by warranty deed recorded in Deed Record 435, at page 597, to Raymond A. McEndarfer, the plaintiff herein, the following described real estate situated in St. Joseph County, State of Indiana, to-wit: A parcel of land in the northeast quater of the southwest quarter of Section 32, Township 36, north, Range 1 East in said St. Joseph County, containing 6.64 acres, bounded by a line described as beginning at an iron stake in the west line of the aforesaid north-east quarter of the southwest quarter of the aforesaid Section 32 at a point 118 feet south of the northwest corner of the aforesaid northeast quarter of the aforesaid southwest quarter of said Section 32, thence east and parallel with the east and west center line of said Section 32 a distance of 1277.6 feet to an iron stake; thence south and parallel with the west line of said northeast quarter of the southwest quarter of said Section 32, a distance of 226.4 feet to an iron...

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13 cases
  • Farner v. Farner
    • United States
    • Indiana Appellate Court
    • July 17, 1985
    ...cited by Stockwell were decided upon pure stipulations of fact agreed on by the parties. These cases, as well as Gorby v. McEndarfer, (1963) 135 Ind.App. 74, 191 N.E.2d 786; Sullenger v. Baecher, (1913) 55 Ind.App. 365, 101 N.E. 517; and State ex rel. Davis v. Board of Commissioners, (1905)......
  • Farmers Mutuals Ins. Co. v. Wolfe, 20693
    • United States
    • Indiana Appellate Court
    • February 13, 1968
    ...Inc. (1965), Ind.App., 209 N.E.2d 273; Beaty v. Donaldson (1964), 136 Ind.App. 269, 200 N.E.2d 233; Gorby et al. v. McEndarfer (1963), 135 Ind.App. 74, 191 N.E.2d 786; Myers, Administrator, etc. v. Wyrick (1963), 134 Ind.App. 670, 191 N.E.2d 107; Gaut et al. v. Gault, Administratrix, etc. (......
  • Emmco Ins. Co. v. Indiana Farmers Mut. Ins. Co.
    • United States
    • Indiana Appellate Court
    • June 1, 1972
    ...is in as good a position as the trial court to determine its force and effect.' (Citing authorities) Gorby et al. v. McEndarfer (1963), 135 Ind.App. 74, at 80, 81, 191 N.E.2d 786, at 790. In 'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial......
  • Indiana Bank & Trust Co. v. Lincoln Nat. Bank & Trust Co. of Fort Wayne
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    • Indiana Appellate Court
    • May 11, 1965
    ...365, 101 N.E. 517, 102 N.E. 380 (transfer denied), F. W. & H. Ind. Tr. & App. Pract. Sec. 1760 and Sec. 1969; Gorby v. McEndarfer (1963), Ind.App., 191 N.E.2d 786, 790. The proposition that the decision was contrary to law requires us to determine whether or not the appellant was denied the......
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