Hutter v. Weiss, 19133

• Decision Date: 03 October 1961
• Docket Number: No. 19133,No. 2,19133,2
• Parties: Dorothy HUTTER and Marguerette Orwall, Appellants, v. Oscar P. M. WEISS, Harold C. Weiss, Augusta L. Marlin, Alva O. Weiss, Appellees
• Court: Indiana Appellate Court

Page 339

177 N.E.2d 339

132 Ind.App. 244

Dorothy HUTTER and Marguerette Orwall, Appellants, v. Oscar P. M. WEISS, Harold C. Weiss, Augusta L. Marlin, Alva O. Weiss, Appellees.

No. 19133.

Appellate Court of Indiana, Division No. 2.

Oct. 3, 1961.

Fraser & Isham, William S. Isham, Fowler, Emmet M. LaRue, Rensselaer, for appellants.

Louis A. Reidelbach, Winamac, Robert E. Million, Monticello, James Chester, Valparaiso, F. L. Wiltrout, Elkhart, for appellees.

PFAFF, Chief Justice.

This action was brought by appellees against appellants to quiet title to a 33 acre tract of land situated in Jasper County, Indiana, alleging that they are the owners thereof in fee simple. Appellants filed their counter-claim alleging that they are the owners in fee simple of said real estate and asking that their title be quieted. Various paragraphs of answer were filed, including answers of admission and denial under Rule 1-3. Under such rule answers are defenses, either legal or equitable, and may be given in evidence in quiet title actions. Sawyer v. Kleine, 1948, 118 Ind.App. 616, 82 N.E.2d 533.

There was a special finding of fact made by the court and, upon the facts so found, the court stated the following conclusions of law thereon: (1) That the law is with the appellees; (2) that the appellees are the legal and equitable owners of the real estate; (3) that the appellants are estopped from asserting or claiming any right, title or interest in and to the real estate; and (4) that the appellants are guilty of laches.

Judgment was accordingly rendered in favor of appellees on their complaint; their title to the real estate in question was quieted; and judgment was rendered against the appellants on their cross-complaint.

The questions presented by appellants are whether the decision is sustained by sufficient evidence; whether it is contrary to law; and whether the court erred in its conclusions of law.

The court found that George A. Ruths, father of the appellants, acquired title to the real estate in controversy on March 16, 1925, by Warranty Deed. Mr. Ruths died intestate on April 4, 1930, in Cook County, Illinois, and left surviving him as sole and only heirs-at-law two daughters, the appellants herein. One Battista Lama was, at the request of the appellants, appointed administrator of the estate of George A. Ruths by the Probate Court of Cook County, Illinois. The real estate in question was listed there as an asset of the estate. The court further found that Battista Lama, as administrator, 'authorized' one Jake L. Eggleston to sell the real estate in controversy; that all transactions relating to the sale by Jake L. Eggleston were made by Lama as administrator and not by appellants; that no power of attorney was ever given Eggleston authorizing him to enter into a contract to sell the real estate.

On March 30, 1933, a contract was prepared reciting that appellants contracted to sell the real estate to Clarence Van Der Wey and Henry Van Der Wey. The signatures on the contract were those of appellants by Jake L. Eggleston, Agent. By the terms of this instrument the purchasers were to make payments totaling $500.00, and to assume the School Fund mortgage of $750.00. The Van Der Weys executed four promissory notes payable to Jake Eggleston for a total of $500.00, representing installments of the purchase money to be paid. These notes were fully paid on or before December 29, 1938, and one bears an endorsement: 'Received payment on the within note July 15, 1933, of $100.00. Marguerette Orwall.'

Battista Lama, as administrator of the estate of George A. Ruths, deceased, executed a warranty deed of said real estate to the Van Der Weys on May 8, 1933, which deed was duly recorded on September 20, 1933, in the office of the Recorder of Jasper County, Indiana. Neither the Jasper Circuit Court nor any other court in Indiana at any time entertained any proceeding by Battista Lama, as administrator of the estate of George A. Ruths, to sell the real estate or to authorize or approve the conveyance thereof, and no reference was made to the sale in Lama's final report as administrator.

Immediately after the execution of the contract, the Van Der Weys entered into complete possession of the real estate, rented it, exercised full, complete and undisputed dominion thereof and erected a dwelling house thereon. They paid all taxes and special assessments until December 29, 1938, when they sold it to Charles R. Weiss, father of appellees, for $2000.00, subject to the School Fund mortgage of $750.00. Charles R. Weiss paid the purchase price in full and received a deed from the Van Der Weys which was recorded, and later a corrected deed was executed by reason of an erroneous description in the first deed. Weiss had no actual knowledge or information that appellants were claiming or asserting any right, title or interest in the real estate and paid full value for it. Weiss immediately took full and complete possession, paid drainage assessments and taxes, made lasting and valuable improvements, collected the rents, and until his death on December 29, 1942, exercised full and complete dominion. The improvements were made in good faith, without knowledge of any claim by appellants.

Charles R. Weiss left as his sole and only heirs-at-law his widow and the appellees herein. The widow, on October 25, 1945, executed her warranty deed to appellees for her interest in said real estate. Ever since the death of Charles R. Weiss, the widow and appellees have had full and complete possession of the real estate, have exercised full and complete rights of ownership and dominion, made valuable and lasting improvements, rented the same, paid taxes, ditch assessments and the School Fund mortgage of $750.00. The expenditures of Charles R. Weiss and his heirs totaled $2934.62. At the time of the death of George A. Ruths in 1930, the value of the real estate was approximately $60.00 per acre and at the time of the trial $200.00 per acre.

Appellants in their original brief attack four of the special findings as not sustained by sufficient evidence and therefore contrary to law. However, in their reply brief they admit that there was either a stipulation or evidence to support each of these findings as made, and we need not further notice this contention. It is apparent that appellants do not now challenge the facts as found but only the meaning to be ascribed to such facts. We, therefore, proceed to examine appellants' contentions that the court erred in its conclusions of law.

When error was assigned in the conclusions of law, the reviewing court formerly could not consider the evidence but only the findings of fact. For the purpose of determining whether there was error in the conclusions of law, under such assignments the appellants admit, and the reviewing court accepts, the special findings of fact as true, limited, however, to the facts found within the issues formed. Kerfoot v. Kessener, 1949, 227 Ind. 58, 84 N.E.2d 190; Gross Income Tax Division of Indiana v. Surface Combustion Corp., 1953, 232 Ind.App. 100, 111 N.E.2d 50; Property Owners Inc. v. City of Anderson, 1952, 231 Ind.App. 78, 107 N.E.2d 3.

Where a fact necessary to sustain the issues was not found by the trial court, it was formerly regarded as not proved and was in effect a negative finding against the party having the burden of proof. McCoy v. Farm Bureau Mut. Ins. Co., 1953, 123 Ind.App. 424, 111 N.E.2d 728; Guraly v. Tenta et al., 1956, 126 Ind.App. 527, 132 N.E.2d 725; Flanagan, Wiltrout & Hamilton, Indiana Trial and Appellate Practice, § 1732, p. 80.

Although where the primary facts found were of such a character that they necessitated the inference of an ultimate fact, such ultimate fact was treated as found by the court. Smith v. Smith et al., 1954, 124 Ind.App. 343, 115 N.E.2d 217.

Rule 2-30 of the Supreme Court, effective January 1, 1958, provides as follows:

'When special findings of fact are made in an action tried by the court without a jury and the court fails to find on some material issue of fact, on appeal from the judgment the reviewing court may either affirm the judgment if it is supported by undisputed evidence, or vacate the judgment and remand the action for findings on the material issues of fact.'

In a quiet title action, the proponent can only recover on the strength of his own title, lack of title in his adversary being insufficient. Kozanjieff v. Petroff, 1939, 215 Ind. 286, 19 N.E.2d 563, 122 A.L.R 479; Kerfoot v. Kessener, supra; Central Federal Savings & Loan Ass'n v. Cummings, 1940, 216 Ind. 636, 25 N.E.2d 638. With this rule of law in mind, it is essential to determine exactly what title, if any, the plaintiffs have to this real estate in controversy. The appellees derived their interest in this property from their father who in turn had purchased this property from the Van Der Weys; the Van Der Weys had purchased the land from one Jake L. Eggleston, who supposedly was acting as an agent for the owners, the appellants. As stated previously, however, the defendants had never authorized Eggleston to act on their behalf to sell this property. The only 'authority' Eggleston had was derived from Battista Lama, the administrator.

In the case of Moore v. Moore, 1900, 155 Ind. 261, 57 N.E. 242, it was held that the title to the real estate of a decedent and the right of possession thereto rests at the instant of the death of the intestate in his heirs, subject to the debts of the intestate, and they take and retain such title, with all the rights and incidents belonging thereto, subject to the right of the administrator to procure an order to sell the same to pay debts. This court also held that an executor or administrator has no authority to sell the real estate of his decedent except by order of court in absence of a testamentary provision authorizing such sale. In the case of Duncan, Administrator, v. Gainey, 1886, 108 Ind. 579, 9 N.E....