Grantham Realty Corp. v. Bowers

• Decision Date: 10 October 1939
• Docket Number: 27237.
• Citation: 22 N.E.2d 832,215 Ind. 672
• Parties: GRANTHAM REALTY CORPORATION v. BOWERS et al.
• Court: Indiana Supreme Court

22 N.E.2d 832

215 Ind. 672

GRANTHAM REALTY CORPORATION v. BOWERS et al.

No. 27237.

Supreme Court of Indiana

October 10, 1939

Appeal from Lake Circuit Court; T. Joseph Sullivan, Judge.

Sheehan & Lyddick, of Gary, for appellant.

F L. Welsheimer, of Gary, for appellees.

SWAIM Judge.

This was an action to quiet title to real estate instituted by Nellie B. Bowers, trustee, against Grantham Realty Corporation, Joseph P. Grantham, Anna S. Grantham, his wife Josephine E. Young, Allen DeLoss Gordon and Emmett Dudley Gordon. To the complaint herein the appellant, Grantham Realty Corporation, filed its answers in three paragraphs and also a cross-complaint in two paragraphs, one seeking to quiet title to the real estate in question and the other for ejectment. The defendants Grantham and Grantham filed two paragraphs of answer to the complaint. On the death of Nellie B. Bowers, trustee, John O. Bowers, Jr., trustee, was substituted as plaintiff.

On the issues being closed the cause was submitted to the court for trial. Special findings of fact and conclusions of law were made by the court and judgment was entered for the plaintiff, pursuant to such conclusions of law, quieting his title to said real estate. From this judgment the appellant prosecutes this appeal, assigning as error each of said conclusions of law and the overruling of its motion for new trial.

All of the grounds assigned in its motion for new trial except one were based on questions concerning the evidence and since the evidence is not in the record the questions sought to be presented on such assigned grounds can not be considered by this court. The remaining ground for a new trial was not discussed by the appellant in its brief and, therefore, has been waived by the appellant.

The facts as specially found by the court, in so far as they are material to the decision in this case, are as follows:

On April 1, 1907, and until his death, Henry N. Bancroft was the owner in fee simple of the real estate herein involved. The said Henry N. Bancroft died intestate in 1907, leaving him surviving as his sole and only heirs his two sons Willis C. Bancroft and Edmund H. Bancroft.

On February 14, 1910, the treasurer of Lake County, Indiana, sold said real estate to John O. Bowers for taxes then delinquent for the years 1908 and 1909. On the same day the auditor of said county issued to such purchaser a certificate for such purchase. On July 29, 1912 said Bowers presented said certificate to said auditor of Lake County, Indiana, and received from said auditor a tax deed regular in form and regularly executed, which deed was duly recorded on the same day in the office of the recorder of Lake County, Indiana.

On May 13, 1913, said John O. Bowers, as plaintiff, filed a complaint in the Lake Superior Court, Room 3, to quiet his title to said real estate, together with other real estate, naming and making parties defendant thereto John James, Henry N. Bancroft and many other persons named therein as defendants 'and each and all of the heirs, legatees, devisees and distributees, respectively of each, any and all such of the above named, designated, and described defendant respectively as are dead, if any such there be of said defendants who are dead, the names of which heirs, legatees, devisees and distributees are not known to plaintiff.' Said cause was duly entered by the clerk of said court in the entry docket of said court and the title or caption of said cause included the names of the plaintiff and all of the above named defendants. The names of Willis C. Bancroft and Edmund H. Bancroft did not appear in said caption and they were not made defendant to said suit by name. The plaintiff in said action filed an affidavit showing that each and all of said defendants were nonresidents of the State of Indiana and the court ordered notice by publication to all defendants of the pendency of said cause. It is not shown that the complaint was verified, nor is it shown that a separate affidavit was filed showing that the names of the heirs of the said Henry N. Bancroft were unknown.

On September 29, 1913, a judgment was entered in said cause. The court found that each and all of the defendants therein had 'been duly notified of the filing and pendency of this cause for hearing, as required by law.' Said defendants were then defaulted. The court heard evidence and found and adjudged that the plaintiff was the owner in fee simple of said real estate; that the defendants 'have not nor has any or either of them any right, title, interest, or claim in and to said real estate or any part thereof, * * * and that the plaintiff's title thereto, as against the claim of each and all of the said defendants be, and the same is hereby forever quieted and set at rest in him.' Said judgment was never set aside nor appealed from.

Thereafter on July 1, 1918, said Willis C. Bancroft and Edmund H. Bancroft each filed in cause numbered 10473 in said Lake Superior Court, being the suit to quiet title heretofore mentioned as filed by John O. Bowers on May 13, 1913, his separate verified petition praying the court to vacate, open up, and set aside the default and judgment rendered against them and each of them in said cause numbered 10473 and that they be allowed to appear in said action and make a defense thereto. Each of said petitioners in his verified petition alleged that he had been made a defendant to said action under the name and title of unknown heir of Henry N. Bancroft; that he had obtained only constructive service by publication and that he had no actual notice or knowledge of such suit or any matters pertaining thereto until May, 1918; that the plaintiff in said suit caused said defendants, including petitioners, to be defaulted and judgment rendered therein against said defendant including said petitioners. The plaintiff in said action filed written objections to each of said petitions on the ground, among others, that said petitioners were not parties to said decree as there was no statute authorizing quiet title suits against unknown heirs at that time. On November 17, 1919, the said Willis C. Bancroft and Kate S. Bancroft, his wife, and Edmund H. Bancroft and Laura P. Bancroft, his wife, by quitclaim deed conveyed all their right, title and interest in said real estate to John W. Lyddick, one of the attorneys who had represented them on said petitions.

On October 6, 1930, said Lyddick and his wife by their special warranty deed conveyed 'all their right, title and interest' in said estate to Joseph P. Grantham and Anna S. Grantham, husband and wife, who in turn, by quitclaim deed conveyed said real estate to the appellant, Grantham Realty Corporation, on June 1, 1932. All of said deeds were duly recorded in the office of the Recorder of Lake County, Indiana. Said real estate was vacant, unoccupied, unimproved and no one was in the actual possession thereof until the summer of 1933, when said John O. Bowers, Jr., acting under and with the consent of Nellie B. Bowers, trustee, caused said lot 10 of said real estate to be graded and covered with cinders and erected thereon a parking lot, which he has since continued to occupy.

Subsequent to the purchase of said real estate at said tax sale the said John O. Bowers and his successors in interest have paid taxes and special assessments on said real estate in the total sum of $1,767.10. The said John W. Lyddick, on March 19, 1920, paid state and county taxes on said real estate in the sum of $2.73.

Said real estate was never redeemed from the tax sale to the said John O. Bowers and at no time did the said Willis C. Bancroft, Edmund H. Bancroft, John W. Lyddick or anyone claiming under them make any attempt to redeem from said tax sale. Since 1912, when said real estate was conveyed to said Bowers, it has increased in value from $250 to $10,000.

The court further found that by reason of a slight error in the description under which said real estate was sold at tax sale and conveyed, and by reason of the county auditor failing to comply with the statute in making the sale and in issuing the certificate, said tax sale certificate and deed 'were not sufficient to convey absolute title to said real estate to said John O. Bowers, Sr., but could and did only convey the tax lien held by the state at that time.'

The court also found that plaintiff John O. Bowers, Jr., as trustee, is now the owner in fee simple of said real estate and that the defendants 'nor either of them, have or has any right, title or interest in or to said real estate of any part thereof.'

On the above facts the court stated the following conclusions of law:

'1. That the law is with the plaintiff. That the plaintiff, as trustee, is the owner in fee simple of the real estate described in his complaint, and that he is entitled to judgment quieting his title thereto as against all defendants to this action.

'2. That the defendant Grantham Realty Corporation take nothing by its cross-complaint filed herein.

'3. That the plaintiff have judgment against the defendant Grantham Realty Corporation for his costs laid out and expended and taxed at $_____.' In this action both the second and third paragraphs of answer to the complaint set up allegations attempting to show that the tax sale and the tax deed to said Bowers were invalid and gave him only a tax lien which, it is alleged by the appellant, is now barred by the statute of limitations. Neither of said paragraphs of answer make any mention of the 1913 action by Bowers to quiet his title. Neither did the second paragraph of cross-complaint filed by appellant contain any allegation concerning said 1913 action and the judgment based thereon but only alleged that the appellant is the owner of said real estate...