Keilbach v. McCullough, 53A01-9605-CV-157

• Decision Date: 26 August 1996
• Docket Number: No. 53A01-9605-CV-157,53A01-9605-CV-157
• Citation: 669 N.E.2d 1052
• Parties: Charles KEILBACH, Appellant-Defendant, v. Dorothea McCULLOUGH, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1052

669 N.E.2d 1052

Charles KEILBACH, Appellant-Defendant, v.Dorothea McCULLOUGH, Appellee-Plaintiff.

No. 53A01-9605-CV-157.

Court of Appeals of Indiana.

Aug. 26, 1996.

Andrew C. Mallor, Kendra Gowdy Gjerdingen, Mallor Clendening Grodner & Bohrer, Bloomington, for Appellant-Defendant.

James M. Secrest, James M. Secrest, P.C., Indianapolis, for Appellee-Plaintiff.

OPINION

BAKER, Judge.

Today we revisit this court's decision in Rieddle v. Buckner, 629 N.E.2d 860(Ind.Ct.App.1994), in which we held that a grantee who was unsuccessful in defending his land from an adverse possessor could recover from the grantor reasonable attorney fees and expenses incurred in defending his title.Appellant-defendantCharles Keilbach contends that the trial court erred in interpreting Rieddle to allow appellee-plaintiffDorothea McCullough, who was successful in her quiet title action, to recover her attorney fees and expenses from him.

FACTS

Pursuant to a real estate contract dated December 19, 1978, and a warranty deed dated May 18, 1987, McCullough purchased approximately 120 acres of real estate from Keilbach.The real estate included a seven acre tract of land adjacent to property owned by Sid D. Martin.During 1993, when McCullough began attempting to sell her land, Martin recorded two affidavits in the Monroe County Recorder's office which provided that he was the owner of the seven acres as the result of his adverse possession of the land.Martin also approached a realtor representing McCullough and informed the realtor, while brandishing a firearm, that he owned the seven acres.In response to Martin's actions, McCullough filed a complaint to quiet title to the seven acres and for slander of title against Martin.Additionally, McCullough sought damages from Keilbach and from Lawyers Title Insurance Corporation, which had issued a title insurance policy to McCullough for the seven acres, for breach of their warranties of title and for their failure to defend her claim against Martin.Following a bench trial on November 21, 1994, the trial court entered its final judgment quieting title to the seven acres in McCullough.Further, the trial court found Martin liable to McCullough for slander of title and both Lawyers Title and Keilbach liable for breach of their warranties of title.With respect to Keilbach, the trial court specifically found:

12.4.Keilbach, in accordance with Rieddle v. Buckner, supra, breached his warranty deed when he refused to defend McCullough's title when challenged by Martin.

12.5.McCullough, in accordance with Rieddle v. Buckner, supra, is entitled to damages against Keilbach for the reasonable costs of her attorney fees and other expenses associated with the defense of her title.

Recordat 83-84.As a result, the trial court found Martin, Lawyers Title and Keilbach jointly and severally liable to McCullough for damages and attorney fees.Keilbach now appeals.¹

DISCUSSION AND DECISION

Keilbach contends that the trial court erred as a matter of law in finding that he breached his warranty of title and in holding him liable for McCullough's attorney fees and expenses in quieting her title.Specifically, Keilbach argues that because McCullough was successful in quieting her title, he did not breach his warranty.

Keilbach transferred his property to McCullough pursuant to a warranty deed.A transferor, by means of a warranty deed, guarantees that the real estate is free from all encumbrances and that he will warrant and defend the title to the land against all lawful...