Guthrie v. Blakely, 1

• Decision Date: 17 November 1955
• Docket Number: No. 1,No. 18705,1,18705
• Citation: 127 Ind.App. 119,130 N.E.2d 62
• Parties: Florence M. GUTHRIE, Plaintiff-Appellant, v. Catherine Delores BLAKELY; Lucius M. Wagner; American Trust Company, individually and as Escrowee and as Trustee; Theodore Doukas and John Psilopoulos, co-partners doing business as 'The Savoy Hotel'; Leo Stebner, doing business as 'Dainty Maid Bakeshop'; Charles Nabicht, doing business as 'The Town Club'; Almac, Inc., an Indiana corporation, doing business under the name of 'Milady Shop'; Isadore Zimmerman, Mrs. Minda Zimmerman Mills, Janet Zimmerman, Harry Zimmerman, and Alvin Zimmerman, as Trustees under the Robert Allen Zimmerman Trust and as Trustees under the Isadore Zimmerman Trust, co-partners doing business as 'The Cotton Shop'; Fannie May Candy Shops, Inc., an Illinois corporation; Emil Johnson; D. D. Gross; John Taylor; H. F. Fries; and Samuel Schulman, Defendant-Appellees, J. B. Fleck and Sons and Company, successor to Fleck Plumbing Company, of South Bend, Indiana, and Armour and Company, of Chicago, Illinois, on behalf of themselves and all other unpaid creditors of the insolvent estate of John C. Barrett, Deceased, Intervenors-Appellees. 8705.
• Court: Indiana Appellate Court

Page 62

130 N.E.2d 62

127 Ind.App. 119

Florence M. GUTHRIE, Plaintiff-Appellant, v. Catherine Delores BLAKELY; Lucius M. Wagner; American Trust Company, individually and as Escrowee and as Trustee Theodore Doukas and John Psilopoulos, co-partners doing business as 'The Savoy Hotel'; Leo Stebner, doing business as 'Dainty Maid Bakeshop'; Charles Nabicht, doing business as 'The Town Club'; Almac, Inc., an Indiana corporation doing business under the name of 'Milady Shop'; Isadore Zimmerman, Mrs. Minda Zimmerman Mills, Janet Zimmerman Harry Zimmerman, and Alvin Zimmerman, as Trustees under the Robert Allen Zimmerman Trust and as Trustees under the Isadore Zimmerman Trust No. 1, co-partners doing business as 'The Cotton Shop'; Fannie May Candy Shops, Inc., an Illinois corporation; Emil Johnson; D. D. Gross; John Taylor; H. F Fries; and Samuel Schulman, Defendant-Appellees, J. B. Fleck and Sons and Company, successor to Fleck Plumbing Company, of South Bend, Indiana, and Armour and Company, of Chicago, Illinois, on behalf of themselves and all other unpaid creditors of the insolvent estate of John C. Barrett, Deceased, Intervenors-Appellees.

No. 18705.

Appellate Court of Indiana, In Banc.

Nov. 17, 1955

Frederick K. Baer, Thomas H. Fisher, South Bend, for appellant.

Lenn J. Oare, Seebirt, Oare & Deahl, South Bend, for appellees, Catherine Delores Blakely and Lucius M. Wagner.

ROYSE, Judge.

This case was originally appealed to the Supreme Court on the theory it was an appeal from an interlocutory decree denying appellant a temporary injunction. That court, in an opinion, 125 N.E.2d 437, held this action was an action to quiet title; that the pleadings placed in issue the merits of appellant's case in chief. 'The 'take nothing' judgment denied appellant any relief whatsoever'. In transferring the case to us the Supreme Court rejected the contention of appellees that this was not a final judgment.

The real questions presented by this appeal are, the rulings of the trial court in overruling the demurrer of appellant to the answer of appellees, and error of the trial court in sustaining appellees' demurrer to the reply of appellant to said answer.

Appellees at the outstart contend appellant's brief presents no question because, they assert, they have not set out in their brief certain exhibits which are necessary to fully present a question here. Our examination of appellant's brief discloses there is no merit to this contention.

The pleadings of the parties in this case take up more than three hundred thirty printed pages of appellant's brief. We deem it necessary only to generally summarize the substance of those which relate to the questions presented herein.

In the argument portion of her brief appellant accurately summarizes the fifteen paragraphs of her third amended and supplemental complaint as follows: (Hereinafter referred to as the complaint).

The 'complaint shows that on May 26 and 27, 1921 John C. Barrett purchased from the then owners the real estate involved in this action under two written purchase contracts attached as Exhibits 1 and 2 to the Complaint. Under these purchase contracts, the then owners of the real estate agreed to sell and convey the same to Barrett as purchaser, who agreed to purchase said real estate at the stipulated price. These purchase contracts were not option contracts, but contained covenants for the purchase and sale of said real estate which were binding upon both sellers and purchaser.

'The purchase contracts provided that the purchaser, Barrett, should have possession of said real estate and pay the taxes, discharge all liens, and insure the improvements thereon after May 1, 1921. The purchase contracts further provided that the sellers had on the respective dates of said contracts executed their warranty deeds covering said real estate to the purchaser, same to be deposited with American Trust Company, along with an executed copy of the purchase contracts, 'in escrow for the use of' the purchaser with directions to the escrowee to deliver said warranty deeds to the purchaser upon payment of the full amount of the purchase price. Time was not made the essence of the purchase contracts.

'Paragraphs One and Two of the Complaint alleged that the purchaser, Barrett, was placed in exclusive possession of said real estate on May 26 and 27, 1921, and remained in possession thereafter for nearly twenty (20) years; that said real estate was of special, peculiar and unique value to the purchaser for his use in conducting his hotel and tavern business thereon; that 'during the year 1940', the purchaser 'duly assigned and conveyed all of his interests' under said purchase contracts and 'all of his right, title and interest in and to said real estate' to appellant and 'placed her in exclusive possession thereof'; that appellant retained such possession 'down to the date of the filing of this action'; that in the years from 1923 to 1927 inclusive, the original sellers assigned and conveyed all of their interest in said real estate by general warranty deeds to American Trust Company, as trustee, 'in trust for the use and benefit' of the purchaser; that appellant 'thus became the complete equitable owner in fee simple of said real estate by virtue of said assignment and conveyance to her from her assignor and predecessor in interest, said John C. Barrett'; that appellant 'has never abandoned, transferred or conveyed her right, title and interest in and to said real estate and is now the equitable owner in fee simple thereof'; that the interest of the original owners under said purchase contracts devolved exclusively upon appellees, Blakely and Wagner; that 'The present parties to this action comprise all of the persons having any right, title, interest or other claim in or to said real estate' or under said purchase contracts; that the purchaser (Barrett) and appellant paid the full purchase price of said real estate and 'fully performed each and all of the other conditions, covenants and agreements which were required to be performed' on their part under said purchase contracts; that the sellers had therefore 'accepted and received during the period between the year 1921 and the filing of this action the full consideration to which they were entitled' under said purchase contracts; that in the year 1945 and prior to the filing of this action, appellant demanded that said appellees, Blakely, Wagner and American Trust Company, as trustee, convey said real estate to appellant (except a part thereof previously conveyed to Barrett), the legal title to which 'was then vested in American Trust Company, as trustee, for the use and benefit' of appellant; that said appellees failed and refused so to do; and that appellant is entitled to specific performance and is without adequate remedy at law. Appellant prayed for a decree of specific performance and for a temporary and permanent injunction enjoining appellees from asserting any right, title or interest in or to said real estate (except the part previously conveyed to Barrett), and for general relief. * * *

'It was also alleged that appellant became sole owner of said real estate by virtue of the fact that John C. Barrett, the original purchaser, died unmarried and intestate on or about February 27, 1940; that American Trust Company was duly appointed the administrator of his estate; that appellant is the only child and the sole heir-at-law, assignee, transferee and distributee entitled to all of his estate, real and personal, including his title to said real estate, and his interests under said purchase contracts; that American Trust Company, as administrator, had completed and closed the administration of his estate and had been discharged; and that all of the real and personal property comprising said estate, including Barrett's title to said real estate and interest therein under said purchase contracts, and also his beneficial interest under the escrow of the warranty deeds and trust of the legal title to said real estate of which American Trust Company was escrowee and trustee, passed by the operation of law to and vested exclusively in appellant as his sole heir-at-law'. (Our emphasis.)

Said complaint also sought damages for breach of the purchase contracts, for recovery of overpayments in the purchase price of said real estate, and for recovery of usury.

It is further disclosed by the complaint that, of the real estate involved in this action, at the time the original contract of sale and purchase was made four-fifths was then owned by Fred Wagner and Lucius M. Wagner, Eva B. Wagner and Katherine B. Wagner, and one-fifth was owned by Ada Wagner Powers.

Exhibit I is a contract of sale and purchase between the owners of the four-fifths interest to John C. Barrett, and provides for the payment to said owners by Barrett the sum of $140,000 over a period of fifteen years. The contract provided the sellers had executed their warranty deed to Barrett to be deposited with the American Trust Company together with a copy of the contract to be held in escrow by said Trust Company to be delivered by it to said Barrett when he had fulfilled his obligations under the contract.

Exhibit II is a similar contract between the owner of the one-fifth interest and said Barrett for the sale and purchase of said interest for the sum of $35,000. It is essentially the same as the above Exhibit I except as to the purchase price.

The parties are agreed that these exhibits are purchase contracts and not options to purchase.

To appellant's complaint appellees filed their answer in twenty paragraphs. The first fifteen paragraphs of said answer were of admission and denial under the rules.

Paragraph Sixteen avers, in substance, at the time of the death of John C. Barrett appellant was and ever since has been a resident of the State of Illinois; that at her request the American Trust Company was appointed administrator of the estate of ...