Guckenberger v. Shank

• Decision Date: 05 December 1941
• Docket Number: 16638.
• Citation: 37 N.E.2d 708,110 Ind.App. 442
• Parties: GUCKENBERGER et al. v. SHANK et al.
• Court: Indiana Appellate Court

37 N.E.2d 708

110 Ind.App. 442

GUCKENBERGER et al. v. SHANK et al.

No. 16638.

Appellate Court of Indiana, in Banc.

December 5, 1941

[Copyrighted Material Omitted]

V J. McCarty, of Brookville, Herman Guckenberg, of Cincinnati Ohio, and Himelick & Himelick, of Connersville, for appellants.

Bielby & Bielby, of Laurenceburg, and Michael Bohland, of Brookville, for appellees.

STEVENSON Judge.

The appellees brought this action against the appellants to recover the possession of certain real estate and damages for waste and the unlawful detention thereof.

Their amended complaint alleged that they were the owners of 160 acres of farm land in Franklin County, Indiana, as tenants by entirety. The appellees alleged that they purchased this real estate from the appellants on July 29, 1938, and as a part of the amended complaint, the deed of conveyance is embodied. The consideration recited in this deed is $1 and other valuable considerations. The deed contained this further provision: "It is further agreed that the grantees herein shall have possession of said real estate on March 1, 1939, with the right, however, of the grantees to enter in the Fall of 1938, and sow wheat in the corn, doing no more damage to the corn than the usual damage of sowing wheat."

The amended complaint further alleged that the appellants had wrongfully and unlawfully failed and refused to give to appellees the possession of the real estate on March 1, 1939, and "that they do now unlawfully and wrongfully hold possession of said real estate and have kept the plaintiffs (appellees) out of possession unlawfully and wrongfully since March 1, 1939."

Allegations as to the damages for waste are then included, and the complaint closes with a prayer that the appellees be adjudged entitled to the immediate possession of the said real estate; that the appellants be removed therefrom; and, that the appellees have damages in the sum of $3,000 for waste and unlawful detention of said real estate.

To this amended complaint, the appellants filed an answer in general denial. The issues, so formed, were submitted to a jury for trial, and the jury returned a verdict in favor of the appellees, and by their verdict found that the appellees were entitled to the immediate possession of the real estate described, and entitled to recover damages from the appellants in the sum of $750. The court entered judgment in accordance with this verdict. A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned on appeal is the alleged error in overruling the appellants' motion for a new trial.

Under this assignment of error, the appellants first contend that the verdict of the jury is not sustained by sufficient evidence. The appellants contend that since there was no allegation in the complaint, that the appellees were entitled to the possession of the real estate described, the complaint was fatally defective and could not be cured by the verdict and judgment rendered thereon.

The appellants direct our attention to Sec. 3-1303, Burns' Ind.Statutes 1933, Sec. 950, Baldwin's Ind.Statute 1934, which deals with the content of a complaint in an action in ejectment. This statute requires that a complaint shall state that the plaintiff in such action is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully kept him out of possession. It is true that the complaint in this case does not allege that the appellants are "entitled to the possession of" the real estate described. The complaint, however, does set out a recital of facts covering the entire transaction, by which the appellees obtained title to this real estate, by purchase from the appellants.

The complaint alleges that as a part of the consideration for the purchase of said real estate, the appellants agreed to give to the appellees absolute possession of said real estate on March 1, 1939, and inserted such a covenant in their warranty deed. The complaint alleges that the appellants have wrongfully and unlawfully failed and refused to give to the appellees possession of said real estate on March 1, 1939, and that they do now wrongfully and unlawfully hold possession of said real estate, and have kept the appellees out of possession unlawfully and wrongfully since March 1, 1939.

It has been held in this state that a complaint is sufficient, if it states in substance the requirements of the statute. Laramore v. Blumenthal, 1915, 58 Ind.App. 597, 108 N.E. 602.

It seems to us that this complaint was sufficient to warrant the inference that the appellees were entitled to the possession of the real estate involved. At any rate, the sufficiency of this complaint was not challenged by demurrer, and it is not disclosed that the appellants were deprived of any defense to which they were entitled under the law in the trial of this action. The complaint, if lacking in any material averment, could have been amended in the lower court at any time to conform to the proof. Sec. 2-1063, Burns' Ind. Statutes 1933, Sec. 168, Baldwin's Ind. Statute 1934. Since this defect, if any, in the complaint was not called to the attention of the trial court, and since the trial court could have permitted the amendment without prejudice to the rights of the appellants, if the matter had been called to the trial court's attention, the pleadings will now be deemed amended on appeal to conform to the proof. Laramore v. Blumenthal, supra; Steve v. Colosimo, 1937, 211 Ind. 673, 7 N.E.2d 983; Evans v. Evans, 1939, 107 Ind.App. 127, 23 N.E.2d 270; Curtis Storage & Trans. Co. v. Rosenberg, 1939, 106 Ind.App. 622, 21 N.E. 2d 440.

The judgment of the court, rendered upon the verdict of the jury, adjudged and decreed that the appellees were the owners in fee simple and entitled to the immediate possession of the real estate described, and the appellants have cited us to no authority in support of their contention that these facts must be recited in the verdict. It follows, therefore, that the verdict of the jury in this case is not contrary to law and was supported by sufficient evidence.

The appellants further contend that the court erred in refusing to permit the attorney for the appellants to state to the jury in his opening statement the true consideration for which the real estate was conveyed. The appellants insist that their attorney had a right to state to the jury that the evidence would show a parol agreement between the parties, made prior to the execution of the deed in question, to the effect that the appellants should be given the right to continue in possession as long as the appellees owned the real estate so purchased. This contention calls in question the competency of evidence tending to prove such an agreement in contravention of the express stipulation in the deed of conveyance, which provided that "the grantees herein shall have possession of said real estate on March 1, 1939."

This same contention is again raised on the trial of the case when evidence was offered by the appellants and, upon objection, refused by the court. This offered evidence was the testimony of the appellant, Carl A. Guckenberger, to the effect that prior to the execution and delivery of the deed to the farm in question, the appellants priced the farm to the appellees at $24,000, but later agreed to accept $20,000 in cash, together with the promise that the appellees would make valuable improvements on the real estate, and would permit the appellants to stay on the farm as tenants as long as the appellees owned the same. The appellants insist that this evidence is proper to explain the true consideration for the deed of conveyance.

The rule governing the admissibility of parol evidence, with respect to contradicting the terms of a written contract, has been aptly stated in Vol. 16 Am. Jur. Sec. 445.

"The general rule that parol evidence is inadmissible to vary or contradict the terms of a written contract applies in all its strictness to actions involving deeds. In the construction of a deed, all prior negotiations must be taken as merged in that instrument, the conclusive presumption being that the whole engagement of the parties and the extent and manner of it were reduced to writing. * * *."

This same rule finds expression in the following Indiana authorities and in the following language: "Moreover, it is well settled in this state that by the execution of a deed the preliminary contract is executed, and any inconsistencies between its terms and those in the deed are to be explained and settled by the deed alone, and that while it is always competent to prove by parol the true consideration of a deed, such evidence is not competent to defeat its operation as a valid and effective grant. Smith v. McClain (1896) 146 Ind. 77, 45 N.E. 41; Lowry v. Downey (1898), 150 Ind. 364, 50 N.E. 79. The same reason would prevent the acceptance of parol evidence to defeat a restrictive condition in a deed." Boonville Milling Co. v. Roth, 1920, 73 Ind.App. 427, page 436, 127 N.E. 823, 826. See also Owen v. Fletcher Savings & Trust Bldg. Co., 1934, 99 Ind.App. 365, 189 N.E. 173; Van Blaricum v. Kerkhoff, 1925, 83 Ind.App. 411, 147 N.E. 633; Wayne, etc., Loan Ass'n v. Beckner, 1922, 191 Ind. 664, 134 N.E. 273.

The appellants insist, however, that these rules are not applicable where the consideration recited in the deed does not purport to name the true consideration. They insist therefore, that the offered testimony is admissible as tending to prove the actual consideration for which the deed was executed. To permit the appellants, however, to offer evidence to the effect that the appellants were to remain in...