Kielczewski v. Rochwalik, 18681
| Decision Date | 19 December 1955 |
| Docket Number | No. 18681,18681 |
| Parties | Joseph KIELCZEWSKI and Antonina Kielczewski, husband and wife, Appellants, v. Joseph ROCHWALIK and Mary Rochwalik, husband and wife, Appellees. |
| Court | Indiana Appellate Court |
J. Edward Barce, Kentland, Walter Nowicki, Edward J. Raskosky, George Kohl, Hammond, for appellant.
Friedrich, Petrie & Tweedle, Hammond, for appellee.
On December 3, 1947, Mary Rochwalik filed an amended complaint in a suit then pending in the Lake Superior Court wherein she sought a decree ordering Joseph Kielczewski and Antonina Kielczewski, husband and wife, to convey to her certain real estate which she claimed to have purchased from said Kielczewskis under an oral contract of sale with the terms of which she had fully complied. Said amended complaint alleges in substance that on April 18, 1946, said Kielczewskis were the owners in fee simple of the following described real estate in Lake County, Indiana, to-wit: Lot 'C' in Resubdivision of Lot 'B' in Krapac Addition to the City of Hammond, said county and state. That on said April 18, 1946, she, then Mary Patka and now Mary Rochwalik by subsequent marriage, entered into an oral contract with the Kielczewskis under the terms of which they agreed to convey the above described real estate to her for the sum of $1,000 payable as follows: $100 down and the balance in installments at such time and in such amounts as she was able to pay provided the entire purchase price was paid in three years. That pursuant to such contract she made the down payment and took possession of the premises and has remained in possession thereof ever since during which time she made valuable and lasting improvements thereon. That in accordance with said agreement she has made installment payments totaling, with the down payment, the sum of $705 and on June 28, 1947, well within the time the entire purchase price was due, she tendered the unpaid balance thereof in the sum of $295 to the kielczewskis and demanded a deed which the refused and have continued to refuse to execute. That she is ready, willing and able to pay said unpaid balance in any sum and at any time the court sees fit to decree. The facts so alleged were put at issue by appropriate answers and the cause was tried to the Lake Superior Court which entered the following finding and judgment on October 22, 1948:
'This cause having been deferred to this day, the Court now finds that plaintiff has failed to substantiate the allegations of her complaint by a fair preponderance of the evidence, and she therefore take nothing by her complaint herein, with all costs against the plaintiff.
'It is Therefore Considered, Adjudged and Decreed by the Court that the plaintiff take nothing by reason of her complaint herein, and that the defendants, do have and recover of and from the plaintiff Mary Rochwalik, all costs herein.'
Fortified by the above judgment Joseph and Antonina Kielczewski brought the action from which this appeal stems. They filed a complaint against Mary Rochwalik and her recently acquired husband Joseph Rochwalik in the Lake Circuit Court in which they allege that they are owners, as tenants by the entirety, of the fee simple title to the real estate hereinbefore described. That on or about April 18, 1946. Mary Patka, now Mary Rochwalik, entered into possession of said real estate under an oral agreement with Joseph Kielczewski to purchase the same, to which agreement, however, his wife Antonina was not a party and who has never agreed to sell said property to either Mary Rochwalik or her husband Joseph. That said Mary Rochwalik breached her agreement, under which she went into possession of said property, by failure to pay the purchase price thereof within the time agreed upon to-wit, three weeks, and that he, Joseph Kielczewski, thereupon rescinded said contract. That nevertheless Mary Rochwalik continued to occupy said premises and on June 29, 1946, married Joseph Rochwalik and since then both the Rochwaliks have continued their possession and occupancy thereof but have refused to pay any rent therefor or surrender possession thereof upon many demands. The complaint then recites a short description of the specific performance suit brought by Mary Rochwalik in the Lake Superior Court and the judgment therein, all of which we have heretofore set out in detail. 'In spite of said judgment,' the complaint alleges, the Rochwaliks unlawfully persist in occupying said premises and to deprive the Kielczewskis of possession thereof. The prayer is for possession and damages.
The Rochwaliks, the defendants below, filed answer to the above complaint in conformity to Rule 1-3 which has no significance in this appeal except that it contains the following admission: 'Defendants admit that allegation in plaintiff's Sub-paragraph 1 of Paragraph 1 which says that since June 27, 1946, plaintiffs are the owners in fee simple as tenants by the entirety of the real estate therein described.' The Kielczewskis, the plaintiffs below and the appellant here, make a point of this upon which we will comment later.
In addition to the answer under Rule 1-3 the appellees filed three paragraphs of answer which they designate as counterclaims and to which replies in denial were filed. Upon a change of venue the case went to the Newton Circuit Court for trial where said court found for the appellees and against the appellants on their complaint. The court further found for the appellees on the second paragraph of their counterclaim, that they own the entire equitable and legal estates in the real estate involved and are the owners in fee simple thereof and are entitled to have their said title forever quieted against the appellants. Judgment consistent with these findings was entered in due course.
The appellants attack the court's decision on the second paragraph of the appellees' counterclaim, which in effect is a cross-complaint to quiet title, on two grounds. First, they say that said decision is contrary to law because the appellees admit, by their answer under Rule 1-3, that the appellants, since June 27, 1946, have been the fee simple owners of the real estate involved. That there is no greater estate in nor a more valid claim to real estate than a fee simple title thereto and a suit to quiet title will not lie to dispose of valid interests even though the appellees have some valid rights with the appellants in the land in controversy. Sawyer v. Kleine, 1948, 118 Ind.App. 616, 82 N.E.2d 533; Johnston v. Murray, 1887, 112 Ind. 154, 13 N.E. 273. There may be some technical merit to this contention but a consideration of all the pleadings in the case convinces us that the...
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