Guraly v. Tenta, 18669

• Decision Date: 06 March 1956
• Docket Number: No. 18669,18669
• Citation: 126 Ind.App. 527,132 N.E.2d 725
• Parties: Magdelin M. GURALY, Appellant, v. Mary TENTA; Joseph Tenta; Gary Trust and Savings Bank, Executor of the Estate of Theresa B. Manyok, Appellees.
• Court: Indiana Appellate Court

Page 725

132 N.E.2d 725

126 Ind.App. 527

Magdelin M. GURALY, Appellant, v. Mary TENTA; Joseph Tenta; Gary Trust and Savings Bank, Executor of the Estate of Theresa B. Manyok, Appellees.

No. 18669.

Appellate Court of Indiana, In Banc.

March 6, 1956.

Haynie, Logan & Van Orman, Jerome B. Van Orman, James P. Murphy, Fort Wayne, for appellant.

Mor N. Oppman, Gary, Geo. E. Hershman, Crown Point, for appellee.

KELLEY, Judge.

This appeal involves questions of law only and they derive their virility from appellant's contention that the conclusions of law stated by the court are erroneous.

The evidence is not brought into the record but the special findings of fact are acknowledged by appellant as 'the uncontraverted facts in this case.' In the special finding of facts the court found in substance:

That the decedent, Theresa B. Manyok, owned a certain farm located in Jasper and Porter counties and described in the findings; that said decedent could neither read nor write the English language and that the appellees, Tenta and Tenta, are not legally related to said decedent in any way nor are they heirs at law or next of kin of said decedent.

On December 13, 1951 decedent entered into a written contract with appellant by which contract appellant agreed to furnish the decedent, during her life, with a home, room and board, washing and other comforts of life, in consideration for which decedent agreed to transfer said real estate to appellant, to take effect upon decedent's death, said real estate to the conveyed by Commissioner's Deed, and the agreement further provided in case appellant failed to perform her covenants, the decedent had the right to declare the contract forfeited and, thereupon, appellant would have the right to sue for services rendered decedent but said contract made no provision for the contingency of decedent's leaving appellant's home without cause and making it impossible for appellant's further performance.

Appellant fully performed the conditions of the agreement until February 6, 1952, on which latter mentioned date said decedent left appellant's home, without cause therefor, and thereafter notified appellant, in writing, that she, the appellant, had breached the contract and declaring the same forfeited; that said notice was merely a statement of decedent and did not conform with the facts in that appellant had not breached the same up to February 6, 1952; that appellant was always ready, willing and able to continue the performance of said contract after February 6, 1952. On said February 6, 1952, decedent was taken by the appellees, Tenta and Tenta, to their home where she remained until her death on October 7, 1953 at the age of 83 years.

That on said February 6, 1952, said decedent entered into a written agreement with appellee, Mary Tenta, similar in nature to the agreement made with appellant. On April 25, 1952, decedent executed a will under which she left all the property to appellee, Mary Tenta, and on May 11, 1953 she executed a warranty deed purportedly conveying said real estate to the appellees, Tenta and Tenta.

Upon said special findings of fact, the court stated four written conclusions of law the first, and the only one necessary for present consideration, being that the law is with the appellees. Judgment for appellees and against appellant was duly entered.

The action had its inception by the filing by appellant of a petition, to which the appellees were made parties defendant, alleging the contract with decedent, that she had fully complied therewith, that said appellees have no interest in said real estate, and praying that she be found the owner thereof and that a commissioner be appointed to convey the same to her.

Appellant's action is one in equity wherein the court is asked to decree the specific performance of the contract alleged in the petition and found by the court in its findings. The trial court, upon the facts as found by it, apparently concluded that such facts did not make a case for specific performance. For a successful assault upon the conclusion of the court, it became and is incumbent upon the appellant to establish that in this equitable proceeding the court, upon such facts, abused its discretion.

The equitable remedy of specific performance is not available as a matter of right, Marion Trucking Co., Inc. v. Harwood Trucking, Inc., Ind.App.1954, 116 N.E.2d 636, 640, but rests in the sound judicial discretion of the court, Ash v. Daggy, 1855, 6 Ind. 259, 261, Marion Trucking Co., Inc. v. Harwood Trucking, Inc., supra. Such judicial discretion is not an arbitrary one but is governed by and must conform to the well settled rules of equity. Ames v. Ames, 1910, 46 Ind.App. 597, 610, 91 N.E. 509, 514, Ash v. Daggy, supra. An abuse of discretion, reviewable on appeal, is an erroneous conclusion and judgment, one clearly against the logic and effect of the fact before the court or against reasonable, probable and actual deductions to be drawn therefrom. Bailin v. Bailin, 1944, 223 Ind. 7, 57 N.E.2d 436.

Appellant, in her briefs, has presented several contentions and much argument to sustain her proposal that the conclusion of the court is erroneous. Said contentions, and the authorities cited in support thereof, are based upon principles...