Groves v. Burton

• Decision Date: 16 December 1954
• Docket Number: No. 18564,18564
• Citation: 123 N.E.2d 204,125 Ind.App. 302
• Parties: Edith GROVES, Leonard Niekamp, Ethel Mominee, Lester Wilder, William Niekamp, Appellants, v. Burtis M. BURTON, Ona E. Burton, Appellees.
• Court: Indiana Appellate Court

Page 204

123 N.E.2d 204

125 Ind.App. 302

Edith GROVES, Leonard Niekamp, Ethel Mominee, Lester Wilder, William Niekamp, Appellants, v. Burtis M. BURTON, Ona E. Burton, Appellees.

No. 18564.

Appellate Court of Indiana, In Banc.

Dec. 16, 1954.

James D. Lopp, John D. Clouse, Evansville, for appellants.

Sanford Trippet, Princeton, for appellees.

KELLEY, Chief Judge.

Alexander Burton died, testate, on June 20, 1900. Surviving him, as his sole heirs, were his wife and five children, one of whom was a daughter, Hettie B. Niekamp, nee Burton. At the time of his death said decedent was the owner in fee simple of certain real estate in Gibson County, Indiana, including the real estate involved in this controversy.

Decedent's will consisted of seven Items. In the consideration of this appeal, we are concerned only with the first and fifth Items. By the first Item the real estate was devised to the testator's widow 'for her natural lifetime'. Item 5 reads:

'It is my will and desire that upon the death of my wife the following part of my real estate go to and invest in my daughter Hattie B. Niekamp, wife of John F. Niekamp for and during her natural life and at her death the same to go to and invest in fee simple in the bodily heirs of said Hattie to-wit: The South East qr. of the South West qr. of section nine (9), Town three (3) South Range Nine (9) West * * *'.

The widow of said decedent died 'before the 30th day of June, 1903', having theretofore elected to take under the will. On May 8, 1909, said Hettie B. Niekamp had four living children, viz.: the appellants, Edith Groves, Ethel Mominee, and William Niekamp, and one Grace P. Wilder, since deceased, mother of the appellant, Lester Wilder. The appellant, Leonard Niekamp, is a son of said Hettie B. Niekamp but he was yet unborn on said May 8, 1909.

On said last mentioned date, said Hettie B. Niekamp instituted an action in the Gibson Circuit Court to quiet the title to said real estate in herself. She joined as parties defendant thereto her said four children, Edith Niekamp (now Groves), Ethel Niekamp (now Mominee), William Niekamp, and Grace P. Niekamp (Wilder). Said children each being then a minor under the age of twenty-one years, were duly and personally served with process on May 11, 1909, returnable May 22, 1909. The court, in said action, appointed a guardian ad litem for said infant defendants and said guardian filed answer in general denial to the complaint in said action.

Upon the issues thus joined, said Gibson Circuit Court, on June 17, 1909, rendered judgment quieting the title to said real estate in said Hettie B. Niekamp and decreed that she was the owner in fee simple thereof.

Thereafter, on October 15, 1910, said Hettie B. Niekamp, her husband joining, conveyed said real estate by warranty deed to one David M. Burton and, by mesne conveyances, the title to said real estate was ultimately vested in the appellee Burtis M. Burton, on April 29, 1924, which title he apparently has continued to hold to the time of the trial.

We gather from the record and the stipulation of the parties that the appellant, Leonard Niekamp, was born to said Hettie B. Niekamp subsequent to the institution and determination of her said quiet title action, but the date or time of his birth is not disclosed. Said Hettie B. Niekamp died on July 25, 1945, leaving as her sole heirs, her husband (who deceased April 30, 1947), her children, the appellants, Edith Groves, Leonard Niekamp, Ethel Mominee, and William Niekamp, and her grandson the appellant, Lester Wilder.

The action giving rise to this appeal was commenced by the filing on September 24, 1953, of a complaint by four of the appellants asserting that they were the owners of the real estate, that appellees claimed an adverse interest therein, and praying that appellants' title be quieted as against said appellees. Upon petition, the appellant, William Niekamp, was joined as a party plaintiff. Appellees filed answer of former adjudication by said judgment of the Gibson Circuit Court, and a cross-complaint seeking to quiet their asserted title against the appellants. Appropriate answers and replies were filed to all affirmative pleadings and thereby the issues were closed.

The historical facts as heretofore set forth were agreed and stipulated by the parties. The court, upon such agreed statement of facts, found for the appellees and against the appellants upon the latter's complaint and for the appellees and against the appellants upon the formers' cross-complaint, and rendered judgment quieting the title in appellees. (We note here what appears to be a clerical error in the record. The description of the real estate in the cross-complaint and in the judgment is the southeast quarter of the southeast quarter, whereas the will, the complaint, and the stipulation of facts describe the land as the southeast quarter of the southwest quarter.)

Appellants assign as error the overruling by the court of their motion for a new trial which specified that the decision of the court is contrary to law and is not sustained by sufficient evidence.

Appellants base their whole case upon the contention that the rule in Shelley's case does not 'operate' upon the devise in said Item 5 of said will and that the Shelley case rule is not the law in Indiana. They then assert that as the 'bodily heirs' of said Hettie B. Niekamp, they took the fee simple remainder created by said Item 5 and, hence, are the owners of said real estate.

The appellees contend, first, that the rule in Shelley's case controls in the 'construction' of said item of said will, and, second, that the appellants are bound by the former adjudication of the issue by the Gibson Circuit Court in 1909. Appellants counter appellees' second proposition with the declaration in their brief that the appellants, Lester Wilder and Leonard Niekamp, 'were not made parties to the former suit, although the mother of one of them was.' They further add that 'according to the undisputed evidence Leonard Niekamp was not a party to this former suit by representation or in any way.' To this last statement we shall further allude at a later point in this opinion.

In logical approach to the solution of our problem, the contention of former adjudication must be considered initially, for if the appellants are bound by that judgment, any contemplation, erudite or otherwise, of the rule in Shelley's case would be superfluous and deserve no further countenance than that of an unprovoked prolatum.

Appellants treat lightly and with apparent diffidence the issue of the efficacy and conclusiveness of said judgment. They devote thereto only one paragraph of the argument portion of their brief in which they simply say, in addition to what we have quoted above, that 'If a party is not named as a defendant, then he cannot be bound by any judgment in an action, unless it be on the basis of being a party by representation.' They neither cite nor refer to any authorities, texts, or legal sources. They have not seen fit to file a reply brief. However, we think the question is deserving of more serious consideration.

Appellants charge no fraud or collusion and in no way attack or contest the jurisdiction of said Gibson Circuit Court over the parties or the subject matter of the action, the legality of said proceedings, or the validity of said judgment.

It is apparent from all the facts and circumstances in the present record, and the contrary is not suggested by any of the parties, that the only title said Hettie Niekamp had to said real estate, at the time she instituted her said quiet title action, was such title as was devised to her under and by virtue of said Item 5 of said will, and that the object of her said action was to quiet the title she asserted thereunder. The court, of necessity, was thereupon required to construe said will in order to determine whether she held the fee to said real estate or only a life estate therein. We cannot here assume, particularly in the absence of any pleading or evidence to the contrary, that the Gibson Circuit Court failed in its duty and quieted the fee-simple title in Hettie Niekamp without first having satisfied itself as to the source of her title and the proper construction to be placed on the instrument by means of which said title devolved.

The judgment was in rem and the appellants, Edith Groves, Ethel Mominee, and William Niekamp, as parties defendant to said action, are concluded by said decree. Davis v. Lennen, 1890, 125 Ind. 185, 188, 24 N.E. 885; Hegarty v. Curtis, 1950, 121 Ind.App. 74, 84, 95 N.E.2d 706; 50 C.J.S., Judgments, § 910 c(3), p. 553; 50 C.J.S., Judgments, § 738, p. 241. And it matters not, insofar as said appellants are concerned, that said judgment may have been erroneous, for the correctness of that judgment is not involved in this appeal, and, there being no contention here that said judgment was void, it is impervious to collateral attack by said appellants. Grantham Realty Corporation v. Bowers, 1939, 215 Ind. 672, 679, 22 N.E.2d 832; Davis v. Lennen, 1890, 125 Ind. 185, 189, final paragraph, 24 N.E. 885, supra; Parker v. Wright, 1878, 62 Ind. 398, 399; Weberpals v. Jenny, 1921, 300 Ill. 145, point 4, 133 N.E. 62; Miller v. Rowan, 1911, 251 Ill. 344, 96 N.E. 285; 34 C.J. 768, Judgments, § 1184; 50 C.J.S., Judgments, § 618. That said appellants were infants at the time said judgment was rendered does not alter or affect the conclusive effect thereof, nor do they so contend. Generally, see 50 C.J.S., Judgments, § 766, p. 294.

The binding force of said judgment seems also to rest upon the appellant, Lester Wilder, for his mother, Grace Wilder, a daughter of said Hettie Niekamp and sister to the aforesaid concluded appellants, was a party defendant to said quiet title action brought by Hettie and was bound by the decree rendered therein. Lester succeeded only to such interest as his mother possessed and his rights,...