Hughes v. Hughes

• Decision Date: 03 November 1976
• Docket Number: No. 1--276A22,1--276A22
• Citation: 171 Ind.App. 255,356 N.E.2d 225
• Parties: Beulah F. HUGHES and Lilah Carlotta Hughes, Appellants (Defendants below), v. Mary Helen HUGHES, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 225

356 N.E.2d 225

171 Ind.App. 255

Beulah F. HUGHES and Lilah Carlotta Hughes, Appellants (Defendants below), v. Mary Helen HUGHES, Appellee (Plaintiff below).

No. 1--276A22.

Court of Appeals of Indiana, First District.

Nov. 3, 1976.

Rehearing Denied Dec. 28, 1976.

James R. Earnshaw, Harding & Henthorn, Crawfordsville, for appellants.

Vernon E. St. John, William M. Bache, Cooke & Bache, Lafayette, for appellee.

LOWDERMILK, Judge.

CASE SUMMARY:

Defendants-appellants Beulah F. and Lilah Carlotta Hughes (the sisters) appeal from a declaratory judgment and order for an accounting in favor of plaintiff-appellee Mary Helen Hughes.

We reverse.

FACTS:

The facts stipulated to the trial court were that the sisters and Charles W. Hughes, their brother, owned 152 acres o land as joint tenants with the right of survivorship. Mary Helen was Charles' wife.

On October 28, 1972, the sisters and Charles, 'as joint tenants with right of survivorship and not as tenants in common,' entered into an 'installment contract for sale of real estate' describing the 152 acres. The buyers promised to pay $14,000 down, to pay $6,000 per year for five years, and then to secure a mortgage and pay the balance of the $80,000 purchase price. Mary Helen also executed the contract.

After a pre-trial conference, the trial court entered its pre-trial order, stating, in pertinent part:

'4. The parties stipulate as follows:

a. That the contract . . . was signed by the three record owners of the real estate described in said contract and by the wife of one of the record owners, who is the plaintiff in this action.

b. That Charles W. Hughes is deceased and that the plaintiff is his widow.

c. That the real estate described in said contract was held by the decedent and the defendants as joint tenants, with rights of survivorships (sic).

7. It is agreed by the parties that the matter is to be submitted to the court on declaratory judgment, to be determined on the above agreed facts, briefs, and arguments of counsel. . . .'

The trial court heard the arguments of counsel, considered the parties' briefs, and then entered its declaratory judgment which stated, in pertinent part:

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the execution of the installment sale of (sic) contract of the real estate in question by defendants and plaintiff's deceased husband change(d) the character of the property in which they held an interest from real estate to personal property and that upon the death of plaintiff's husband the one-third interest in the contract passed to his heirs or personal representative under his will, which ever the case might have been, and that the defendants and each of them have no interest in the one-third interest of Charles W. Hughes, and that the defendants shall render an accounting to the plaintiff or to the heirs of Charles W. Hughes or to the personal representative of Charles W. Hughes, whoever the appropriate person is who would acquired his interest upon his death. And that defendant shall set over to such person any monies acquired pursuant to such contract to which Charles W. Hughes would have been entitled since his death. And that defendants shall pay over to such person any monies received in the future on such contract in accordance with this finding.'

ISSUES:

1. Whether the record of the proceedings before this court is defective so that this court cannot render an opinion.

2. Whether the sisters and Charles held the right to the proceeds under their contract as joint tenants with right of survivorship or as tenants in common.

DECISION:

ISSUE ONE:

Mary Helen first asserts that the sisters' appeal must fail because the record of the proceedings filed by the sisters is defective in that it contains no bill of exceptions bringing into the record the facts upon which the trial court made its decision.

However, with the advent of the Indiana Rules of Civil Procedure 'a bill of exceptions is no longer necessary to bring evidence within the transcript of the record for purposes of appeal.' Registration & Management Corp. v. City of Hammond (1972), 151 Ind.App. 471, 472--473, 280 N.E.2d 327, 329.

Mary Helen does not Ind. Rules of Procedure, Appellate Rule 7.2(A)(3)--(4), which requires a record of the proceedings to include a transcript of the evidence nd proceedings at trial, or--if a transcript was not made or is unavailable--a statement of the evidence and proceedings, either of which must be submitted to the trial court judge for certification.

Mary Helen raised this issue while moving to dismiss the instant appeal or to affirm the trial court's judgment or, in the alternative, for an enlargement of time to file her appellee's brief. This court denied her motion to dismiss or affirm and granted an enlargement of time within which Mary Helen filed her appellee's brief, again raising this issue.

We deem this issue to be of such import that we will discuss it while ruling on it a second time.

No transcript or statement of the oral arguments before the trial court is included in the record of proceedings before this court. However, Mary Helen did not request a transcript or statement of the oral arguments in the trial court.

In Kujaca v. Kujaca (1973), Ind.App., 304 N.E.2d 870, Robert Kujaca did not prevail on the issue of a lack of transcript or statement of certain proceedings. This court stated, at 304 N.E.2d 878--879:

'Robert Kujaca had notice of the May 31, 1972 final hearing on his divorce. He did not at any time request that a record be made of these proceedings nor did he choose to attend the proceeding himself. The rule he is attempting to invoke was not made to frustrate the expeditious handling of litigation but was made to effect a fair and equitable record for appeal. No record was made of the May 31, 1972 final divorce proceedings. None was requested by the parties. . . .' (Our emphasis.)

We therefore hold that Mary Helen cannot first raise on appeal the defect in the record of the proceedings after having ignored an opportunity to seek correction of the defect. See Barton v. State (1960), 240 Ind. 257, 163 N.E.2d 600.

But our examination cannot end at this point. Where there is no transcript or statement of the evidence and proceedings and where the appellant's challenge depends upon the evidence, this court is generally given no means by which it can review the question raised by the appellant--and must therefore affirm. E.g., Registration & Management Corp., supra. In Jackson v. Jackson (1974), Ind.App., 314 N.E.2d 70, this court reviewed AP. 7.2(A)(4), supra, and its predecessor and stated, at 314 N.E.2d 72:

'In reading these two rules together, we do not perceive that it was the intent of the Supreme Court to change the former practice, wherein after the trial judge settled the bill of exceptions and signed the Judge's Certificate thereto, someone, usually the appellant's attorney, had to take the bill of exceptions to the Clerk, have it filed and made a part of the record. If this was not done, and the questions sought to be raised on appeal required a consideration of the evidence for their resolution, the Supreme Court consistently held that if the evidence had not been made a part of the record, the reviewing court could not consider it and therefore nothing was presented on appeal.' (Our emphasis.)

However, in this case there was no evidence which must be considered on appeal. The trial court stated in its pre-trial order, supra, that it would decide the case on the facts stipulated therein and would not conduct a 'trial' as such, but would only hear oral arguments. Its entry of judgment reported that this commendable practice was followed. Both of these orders and the contract were properly included in the record of the proceedings pursuant to Ind. Rules of Procedure, Appellate Rule 7.2(A)(2).

We therefore conclude that in this case the sisters met their 'burden to provide the reviewing court with a record sufficient to permit consideration of the claimed error or errors.' Kerkhof v. Dependable Delivery, Inc. (1975), Ind.App., 338 N.E.2d 513, 516.

ISSUE TWO:

The instant case presents a question of first impression in Indiana: Whether persons who own land as joint tenants with right of survivorship, after entering as joint tenants into an installment contract to convey said land, hold the right to receive payments under the contract as joint tenants or as tenants in common.

The trial court held that Charles' interest in the proceeds of the contract was not extinguished by his death but 'passed to his heirs or personal representative . . .' It therefore appears that the trial court deemed Charles' interest in the right to the proceeds to be that of a tenant in common.

The sisters contend that the trial court erred in adhering to what they label as the 'minority rule.' A more accurate reflection of the current state of the law appears at 3 American Law of Property § 11.28A, at 9 (Supp.1962):

'Where one joint tenant . . . dies after having made a contract for the sale of real property, an increasingly important problem has been the ownership of the proceeds due from the purchaser. Numerous cases deal with the question of whether the survivor of the tenancy is entitled to all the proceeds of the sale or whether, by virtue of the sale, the joint tenancy is severed . . . and changed into an estate in common in the proceeds, thus allowing the decedent's estate a share thereof. It is of course undisputed that the legal title after one tenant dies vests in the survivor.

'Where the vendor's title was held in joint tenancy, recent cases have split sharply on the issue of whether a conversion and severance was effected by the contract to sell. The Iowa and Nebraska courts have held that the proceeds were to be held in common, while Kansas and Illinois have held that the doctrine should not apply and that the survivor is entitled to all. The weight of authority...