Kessler v. Williams, No. 20032

• Docket Nº: No. 2
• Citation: 198 N.E.2d 22, 136 Ind.App. 110
• Case Date: April 30, 1964
• Court: Court of Appeals of Indiana

Page 22

198 N.E.2d 22 136 Ind.App. 110 Ada S. KESSLER, Appellant,
v.
Stanley C. WILLIAMS, Edith M. Williams, Appellees. No. 20032. Appellate Court of Indiana, Division No. 2. April 30, 1964.

[136 Ind.App. 111] Fred R. Robertson, Richard E. Kreegar, Anderson, for appellant.

Edgar W. Bayliff, Cook, Bayliff, Mahoney & Martin, Kokomo, for appellees.

MOTE, Judge.

The litigation in the instant case was commenced by the appellant, Ada Kessler, when she filed a complaint to cancel a deed whereby she, reserving a life estate, conveyed the remainder of an eighty (80) acre farm to the appellees, Stanley Williams and Edith Williams. Appellees filed a counter-claim to quiet their title.

The trial court found for the appellees on their counterclaim and against appellant on her complaint. Appellant's motion for new trial was overruled and this appeal followed. The appellant assigns as error [136 Ind.App. 112] the ruling on the said motion for new trial, which contains three specifications of error; (1) the 'verdict' of the court was not

Page 23

sustained by sufficient evidence; (2) the 'verdict' of the court was contrary to law; the third specification is not argued by appellant and, therefore, is immaterial in this appeal.

The trial court, by request of the appellees, made special findings of facts and conclusions of law in regard to both the complaint to cancel the deed and answer thereto, and the counter-claim to quiet title and the answer thereto. Those pertaining to the complaint for cancellation of the deed, omitting land description, are as follows:

'SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COMPLAINT AND ANSWER

* * *

* * *

'The Court finds the facts to be:

'(1) That on and prior to the 11th day of August, 1959, the plaintiff was the owner in fee simple of the following described real estate in the County of Tipton, State of Indiana, to-wit:

* * *

* * *

'(2) That on the 11th day of August, 1959, the plaintiff made and executed and delivered to the defendants a deed conveying the aforesaid real estate to the defendants subject to a life estate in the plaintiff and the plaintiff's daughter, Nellie Shockley, who is now deceased.

'(3) That said conveyance of the aforesaid real estate to the defendants by plaintiff was made as a gift from plaintiff to defendants.

'(4) That defendants made no promises to plaintiff to induce the execution of said deed.

'(5) That defendants committed no wrongful act, fraud, or undue influence to induce the execution of said deed.

[136 Ind.App. 113] '(6) That the defendants are now the owners of the aforesaid real estate subject to a life estate in the same in the plaintiff.

'As conclusions upon said facts, the Court states:

'1.

'That the law is with the defendants herein.

'2.

'That the defendants are the owners of the following described real estate, to-wit:

* * *

* * *

'That the defendants should recover from the plaintiff their costs and charges in this cause heretofore laid out and expended.'

The findings of facts and conclusions of law as respects the counter-claim read:

'SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COUNTER-CLAIM AND ANSWER

* * *

* * *

'The Court finds the facts to be:

'(1) That the defendants and counter-claimants are the owners of the remainder interest in the following real estate, in the County of Tipton, State of Indiana, to-wit:

* * *

* * *

subject to a life estate in the plaintiff, Ada S. Kessler.

'(2) That the plaintiff claims an interest in said remainder interest of defendants and counter-claimants adverse to the defendants and counter-claimants.

'(3) That plaintiff's claim is without right and unfounded and constitutes a cloud on said defendants and counter-claimants' title.

'(4) That said defendants' and counter-claimants' title to said real estate,

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subject to the life estate of the plaintiff, should be quieted.

[136 Ind.App. 114] 'As conclusions on said facts,...