Heaton v. Grant Lodge No. 335, I.O.O.F.

• Decision Date: 10 December 1913
• Docket Number: No. 7,984.,7,984.
• Citation: 55 Ind.App. 100,103 N.E. 488
• Parties: HEATON et al. v. GRANT LODGE NO. 335, I. O. O. F.
• Court: Indiana Appellate Court

55 Ind.App. 100

103 N.E. 488

HEATON et al.

v.GRANT LODGE NO. 335, I. O. O. F.

No. 7,984.

Appellate Court of Indiana, Division No. 1.

Dec. 10, 1913.

Appeal from Circuit Court, Jay County; John F. La Follette, Judge.

Action by Wait M. Heaton and another against Grant Lodge No. 335, Independent Order of Odd Fellows. From a judgment for defendant, plaintiffs appeal. Affirmed.Frank H. Snyder and Whitney E. Smith, both of Los Angeles, Cal., for appellants. D. F. Taylor, of Portland, and Charles O. Weimer, for appellee.

HOTTEL, J.

This is an action begun by appellants, Wait M. Heaton and his wife, Viola A. Heaton, against the appellee, Grant Lodge, to quiet appellant's title to a lot or tract of real estate in the town of Mt. Vernon (now Redkey), Jay county, Ind., to wit: “A part of lots 7 and 8, in block 1, in the town of Mt. Vernon (now Redkey) bounded as follows: Beginning at the southwest corner of said lot 7, and running thence east 23 feet; thence north 95 feet; thence west 23 feet; thence south 95 feet to the place of beginning.” The issues of fact were tendered by a complaint in one paragraph and a general denial. Before trial, Viola A. Heaton died, and her children, Robert S. and Alice C. Heaton, were substituted as plaintiffs. There was a trial by the court and a general finding and judgment for appellee. Appellant Wait M. Heaton filed a separate motion for new trial, which was overruled. Appellants Robert S. and Alice C. Heaton filed a motion to modify the judgment and also their separate and several motion for new trial. These motions were each overruled. Exceptions were properly saved to said several rulings, and they are each separately assigned as errors by the respective parties against whom they were made, and are, by them respectively, relied on for reversal.

[1] It is enough to say with reference to the ruling on the motion of appellants Robert S. and Alice C. for a modification of the judgment that no available error is presented by such motion for either of two reasons:

1. Such motion states no reason for the modification asked. The trial court was entitled to know on what ground the motion was based. Hogate, Pleading & Practice, § 871; Hormann et al. v. Hartmetz, 128 Ind. 353, 358, 27 N. E. 731;Evans v. State, 150 Ind. 651, 655, 50 N. E. 820;Borror v. Carrier, 34 Ind. App. 353, 372, 73 N. E. 123.

[2] 2. The effect of the modification would have been to completely change the judgment from one adverse to those asking the modification to a judgment in their favor, and no error results from overruling a motion asking such a modification. Strange v. Tyler, 95 Ind. 396, 397;Dorsey v. Dorsey, 29 Ind. App. 248, 250, 64 N. E. 475. This must be true because, in deciding such motion, the court cannot look beyond the finding and the pleadings (Furry v. O'Conner, 1 Ind. App. 573, 580, 581, 28 N. E. 103;Shaw v. Newsom, 78 Ind. 335, 338); and if the finding should have been in favor of such appellants, instead of against them, it must follow that such finding would not be sustained by sufficient evidence, and would be contrary to law, and hence such error would be presented by the motion for new trial.

We next consider the question presented by the motion for new trial made by appellant Wait M. Heaton. It is insisted by said appellant that the decision of the trial court against him is not sustained by sufficient evidence. There is little or no dispute in the evidence. The facts disclosed by it are substantially as follows: On February 15, 1894, Martha F. Paxon, widow of Pierce I. Paxon, deceased, who was then the owner of said real estate above described and other real estate adjacent thereto, by her warranty deed conveyed to Charles E. Walker and his wife, Isabelle Walker, said lot above described and on the same day conveyed to appellee, Grant Lodge, a lot of the same dimensions immediately east of and adjacent thereto. On the same day said Walker & Walker and appellee, Grant Lodge, by and through its trustees, entered into a written agreement wherein they recited that they were the respective owners of said two adjacent lots and that they mutually desired to erect a substantial two-story brick building thereon with brick partition wall as high as the first story, on the line dividing said lots and provided for the erection, use, occupancy, and lease of said building and the terms and conditions thereof in part as follows: “The party of the first part (Walker & Walker) covenants and agrees to put in good, suitable and substantial foundation and complete a good and substantial brick building on his said ground to be twenty-three (23) feet wide and not less than seventy-five (75) feet long to be built as high as and constituting the first story including good and suitable joice on the top thereof. The walls of said story to be of suitable material and thickness to properly support another story on the top thereof: Provided however that the partition wall hereinbefore mentioned shall be thirteen inches thick with a proper and suitable foundation thereunder, which wall and foundation shall be constructed by both of said parties each bearing one-half of the expense thereof. And the party of the second part covenants and agrees to construct a like building and of like dimensions on their said ground and to assist in constructing said partition wall and its foundation bearing one-half the expense thereof and that they will construct and complete a second story on said building serving as a second story for both the portion built by first and second parties. Second party to properly and substantially roof said building and to put a good and proper front in said second story suitable for such building and bear all the expense of said second story. The fronts of the two lower stories alike. In the consideration whereof said first party has leased and rented and does hereby lease and rent unto said trustees and their successors for the use of said lodge and their grantees and assigns the second story so to be constructed over the portion of said building to be built by said first party as aforesaid for and during the term and period of ninety-nine years from and after the date hereof, renewable at the option of second party their grantees and assigns forever on their compliance with the terms and conditions on their part to be done and performed herein stipulated. ***” This agreement was recorded February 16, 1894.

On March 22, 1894, said Walker & Walker and said Grant Lodge executed a mortgage on said Walker & Walker lot above described to “No Two Indiana Mutual Building & Loan Association” of Indianapolis, to secure a note of date March 1, 1894, for $1,000 signed by same parties. On October 20, 1894, a mortgage in the same form by same parties and the same association was executed to secure a second note given by same parties for $300. On February 18, 1897, there was filed in the Jay circuit court by said building and loan association a suit to foreclose said mortgages. Said lodge was made a defendant to said foreclosure proceeding and by and through its trustees was summoned to appear thereto, and was defaulted. On April 1, 1897, a judgment and decree of foreclosure was entered by said court in said action. On March 11, 1897, Walker & Walker by warranty deed conveyed said real estate to Wait M. Heaton and John M. Sims, which deed contained the following provision: “Also the grantors convey to the grantees all the shelving, gas fixtures, except a regulator and other fixtures belonging to said property, this conveyance is made subject to a mortgage held by the Indiana Mutual Building & Loan Association of Indianapolis, Indiana. Also the street assessments against said lots for street improvements which grantee agrees to assume.” On the 17th day of September, 1899, Wait M. Heaton and John Sims obtained in the Jay circuit court a judgment quieting title to the lot here involved as against any and all claims of Charles E. and Isabelle Walker, said judgment being obtained on a cross-complaint filed in an action brought by Charles E. Walker et al. On November 13, 1899, the sheriff of Jay county conveyed by deed said real estate to Viola A. Heaton and Jane E. Sims. This deed recited, among other things, that said judgment had been obtained by said building, etc., association at the March term, 1897, of said Jay circuit court together with “a decree for the sale of all the interest, estate, right, and title of the defendant Charles E. Walker et al. in and to certain real estate” (describing the real estate here involved); that on April 7, 1897, a copy of said decree was issued and delivered to the sheriff of said county directing him to sell; that after giving notice and after offering rents and profits he then “offered at public auction all the rights, title, and interest in fee simple of the said Charles E. Walker et al. in and to said real estate,” and the said building and loan association bid the same in; that on May 1, 1897, such sheriff executed to said association a certificate of purchase for said real estate; that on the 2d day of February, 1898, for a valuable consideration, the said...