Grantham Realty Corp. v. Bowers

• Decision Date: 07 February 1939
• Docket Number: 15862.
• Citation: 18 N.E.2d 929
• Parties: GRANTHAM REALTY CORPORATION v. BOWERS et al.
• Court: Indiana Appellate Court

18 N.E.2d 929

GRANTHAM REALTY CORPORATION v. BOWERS et al.

No. 15862.

Appellate Court of Indiana, in Banc.

February 7, 1939

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

Sheehan & Lyddick, of Gary, for appellant.

F.L Welsheimer, of Gary, for appellees.

DUDINE Judge.

This is an appeal from a judgment quieting title to certain real estate in appellees. The suit was instituted by Nellie B Bowers, Trustee, against appellant Grantham Realty Corporation, Joseph P. Grantham and Anna S. Grantham, his wife, and three other defendants who were defaulted and whose names are not material here.

The complaint was in the ordinary short form of complaint for quiet of title to real estate. Joseph P. Grantham, Anna S Grantham and appellant corporation filed an answer in three paragraphs, including a general denial. Appellant, Grantham Realty Corporation, also filed a cross complaint in two paragraphs, one of which sought to quiet its alleged title to the real estate and the other sought ejectment of appellees.

John O. Bowers, Jr., Trustee, was substituted as plaintiff instead of Nellie B. Bowers, trustee, on account of the death of Nellie B. Bowers, and thereupon the issues were closed by answers and replies.

The cause was submitted to the court for trial without a jury and upon proper request the court made a special finding of facts and stated three conclusions of law all of which were in favor of appellees and against appellant. Judgment was thereafter entered in accordance with the conclusions of law.

Appellant duly filed a motion for new trial, which was overruled, and thereafter this appeal was perfected.

The errors assigned upon appeal and discussed in appellant's brief are contended errors in each of the conclusions of law and contended error in overruling the motion for new trial.

Although appellant's motion for new trial contains ten grounds, only one of the grounds is discussed in appellant's brief and that ground is, in effect, a request for a new trial on account of newly discovered evidence. That ground for new trial is supplemented (in the motion for new trial) by an affidavit setting up the claimed new evidence, when it was first discovered, etc.

We deem it sufficient to say with reference to said ground for new trial that the evidence heard by the trial court is not in the record upon appeal. In the absence of said evidence, we cannot determine whether the trial court committed error in overruling said request for new trial. Not having said evidence before us, we cannot determine whether the evidence referred to in the motion for new trial as "newly discovered evidence" is newly discovered or merely accumulative evidence.

The facts found by the court in so far as they are material here are in effect as follows:

Henry N. Bancroft died intestate in the month of April, 1907, leaving as his sole and only heirs at law his two sons, Willis C. Bancroft and Edmund H. Bancroft. At the time of his death Henry N. Bancroft was the owner in fee simple of said real estate.

On February 14, 1910, John O. Bowers (Sr.) purchased said real estate at a delinquent tax sale and on July 29, 1912, received a tax deed therefor, which was dated July 29, 1912, and recorded on that date.

On May 13, 1913, John O. Bowers (Sr.) filed his complaint to quiet title to said real estate, "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 of such of the above named, designated and described defendants 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. That Willis C. Bancroft and Edmund H. Bancroft were not made defendants by name. That said cause was duly entered by the clerk of said court in Entry Docket No. 7, as cause No. 10473, and that in said entry in said Entry Docket the names of the plaintiff and all defendants, including the above named defendants, appear of record as the title or caption of said cause. That said Willis C. Bancroft and Edmund H. Bancroft do not appear in said caption by name. That on said last mentioned date said John O. Bowers, as plaintiff in said cause No. 10473, filed in said court an affidavit showing that each and all of the defendants in said cause were nonresidents of the State of Indiana. That thereupon said court ordered notice by publication in the Whiting Call to all defendants of the pendency of said cause, in the manner and form set out in said caption, returnable on the 9th day of September, 1913. * * *"

The court in said cause (number 10473) found "that each and all of said defendants * * * have been duly notified of the filing and pendency of this cause for hearing as required by law", and defaulted them. Thereupon a finding and judgment was entered in said cause on September 29, 1913, that John O. Bowers (Sr.) "is the owner in fee simple of said real estate etc." Said judgment was never set aside or appealed from.

On December 26, 1930, John O. Bowers (Sr.) died intestate, he not having executed any conveyance for said real estate during his lifetime.

On January 14, 1933, when this cause before us was instituted, all the rights, title and interest of John O. Bowers (Sr.) in said real estate were held by appellee, John O. Bowers, Jr., as trustee, under the provisions of a certain trust agreement.

On November 17, 1919, about four years after the title to said real estate was so quieted in John O. Bowers (Sr.), Willis C. Bancroft and his wife, and Edmund H. Bancroft and his wife conveyed "all their right, title and interest" in said real estate to John W. Lyddick by deed dated November 17, 1919, and recorded January 10, 1920.

John W. Lyddick and his wife conveyed all their right, title and interest therein to Joseph P. Grantham and Anna S. Grantham by deed dated October 6, 1930, and recorded October 10, 1930, and they in turn conveyed their right, title and interest therein to appellant, Grantham Realty Corporation, by deed dated June 1, 1932, and recorded July 9, 1932.

Said real estate comprised five platted lots. None of them had been improved, occupied or in the actual possession of anyone except that in the summer of 1933 said John O. Bowers, Jr., with the consent of said Nellie B. Bowers, Trustee, who then claimed to hold title thereto as trustee, graded one of said lots, covered it with cinders and constructed thereon a parking space, and since then he has been and is now in possession of said one lot.

Said real estate was not redeemed from said sale for delinquent taxes and no proceedings were instituted within the fifteen years next following the execution and recording of the tax deed to redeem said real estate from said tax sale.

The court in the cause before us further found certain discrepancies in the description of said real estate as shown in the assessing records and tax records, and in the tax sale certificate and tax deed; the court further found that certain deficiencies existed in the county auditor's...