Hawthorne v. Larwill
| Decision Date | 20 April 1949 |
| Docket Number | 17797. |
| Citation | 85 N.E.2d 264,119 Ind.App. 239 |
| Parties | HAWTHORNE et al. v. LARWILL. |
| Court | Indiana Appellate Court |
Appeal from Whitley Circuit Court; Lowell F. Pefley, Judge.
William M. Bloom and Bloom & Bloom, all of Columbia City, for appellants.
Helmke Philips & Beams, of Ft. Wayne, for appellee.
Appellee filed her complaint against the appellant Fred M. Hawthorne only for possession of real estate, for the rental value of the real estate since 1936, and for other relief.
In addition to answer in denial under the rules, appellant Fred M. Hawthorne filed three affirmative pleadings. By the first designated a cross complaint to quiet title, he asserts that he is the owner by parole gift from appellee of a life estate in part of the real estate, pursuant to which gift he took possession and made valuable and lasting improvements.
His second paragraph of counterclaim alleges that he took possession of a part of the real estate at the request of appellee, and with her knowledge, consent, and assistance constructed improvements of the value of $6,000.00, for which amount he asks judgment.
His third paragraph of counterclaim asserts a written lease with appellee which provides for reimbursement of appellant for permanent improvements made at his expense; that improvements were made in the sum of $8,000.00 with the knowledge, consent and approval of appellee, for which amount he asks judgment. Appellee answered this paragraph, admitting the execution of the lease, but denying giving written consent to any improvements.
The appellant Beatrice Hawthorne, wife of appellant Fred M. Hawthorne, was permitted to intervene as a party defendant to file pleadings to set up her alleged interest in the real estate. She filed a cross complaint to quiet title, alleging ownership of a life estate by parole gift, pursuant to which she took possession and made improvements. Both appellants then filed a joint cross complaint to quiet title, asserting ownership jointly of a life estate by parole gift, pursuant to which they took possession and made valuable improvements.
Trial by the court resulted in a finding for appellee on her complaint for possession; that the same had been wrongfully detained by both appellants; that the increment to the real estate by reason of the improvements placed thereon by appellants is $4,000.00; that a fair and reasonable rental value for the approximately ten years that the appellants lived on said real estate is $350.00 a year or $3,500.00; that during said period of ten years the appellants have paid to appellee as rental the sum of $60.00, and that said sum is set off by the payment of $60.00 made by appellee on boats purchased by appellant Fred M. Hawthorne; that the appellee is entitled to no other accounting. The court further found for appellant Fred M. Hawthorne on his second paragraph of counterclaim; that he is entitled to $500.00 from appellee, the same being the difference between the increment to the property by reason of improvements made by appellants or either of them, and the fair rental value of the real estate. The court further found against appellants on their other pleadings. Judgment was rendered accordingly, including a judgment against both appellants for possession of the real estate.
The overruling of their motion for new trial is assigned by appellants as error. This motion contains three grounds: (1) that there was error in the assessment of the amount of recovery in that the amount awarded to appellant Fred M. Hawthorne on the second paragraph of his counterclaim is too small; (2) that the decision is not sustained by sufficient evidence; and (3) that the decision is contrary to law.
Appellee became the owner of the real estate involved in January of 1938. Under an arrangement with appellee, which the court in effect found to be a tenancy at sufferance, the appellants took possession on March 17, 1938, and thereafter made extensive improvements of a permanent nature. Appellants contend that their...
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