Kline v. Indiana Trust Co.

• Decision Date: 15 December 1922
• Docket Number: No. 11300.,11300.
• Citation: 79 Ind.App. 466,137 N.E. 555
• Parties: KLINE v. INDIANA TRUST CO. et al.
• Court: Indiana Appellate Court

79 Ind.App. 466

137 N.E. 555

KLINE

v.INDIANA TRUST CO. et al.^*

No. 11300.

Appellate Court of Indiana, Division No. 2.

Dec. 15, 1922.

Appeal from Superior Court, Marion County; Solon J. Carter, Judge.

Action by Mary D. Kline against the Indiana Trust Company, trustee, etc., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

James D. Ermston, of Indianapolis, for appellant.

Ryan, Ruckelshaus & Ryan, of Indianapolis, for appellees.

NICHOLS, P. J.

It is averred in appellant's amended complaint in substance: That, on or about August 10, 1911, appellant entered into a written agreement with the appellees, and each of them, whereby they leased to appellant for a term of 20 years from said date certain real estate therein described. Said written agreement provided, among other things, that appellant was to take immediate possession of said real estate, and erect thereon a one-story building to be finished by the spring of 1912, and under roof ready for occupancy; that appellant was to pay all taxes as the same became due and payable, and to pay to appellees the sum of $35 per month rent in advance for said premises. Appellant paid all of the expense of erecting said building, and has performed all of said agreement upon her part to be performed, and that appellees have failed and refused to perform the conditions of said written agreement on their part to be performed.

That under the terms and conditions of said written agreement appellant took possession of said real estate and continuously occupied the same, and continued to occupy the same, and by reason of the premises hereinbefore set out acquired an estate for years therein, and has color of title to an estate for years therein, to wit, 20 years, the same having been acquired by purchase as aforesaid from the owner of the fee-simple title to said real estate.

That on or about February 11, 1916, appellee the Indiana Trust Company, trustee under the will of Peter Lieber, deceased, brought a certain action in ejectment in the circuit court of Marion county, Ind., against appellant, seeking thereby to eject appellant from said real estate. Upon September 27, 1916, the venue of said cause was changed to Boone county, and on January 20, 1917, the finding and judgment of the court therein was in favor of appellee Indiana Trust Company, trustee, and against appellant. (On appeal the judgment in the former action was affirmed by this court, Kline v. Indiana Trust Co., 125 N. E. 434.)

That appellant occupied said real estate as aforesaid, and as such occupant in good faith made valuable and permanent improvements thereon, which were of the cash value of $12,000, which includes the erection of a permanent building on said premises. That said land without said improvements is of the fair value of $4,000. Said written agreement was either stolen, lost, or destroyed, so that appellant could not file the original or a copy of said written agreement as an exhibit and as a part of the complaint.

Appellant demands judgment for the value of said improvements with interest, and prays that her title to said real estate may be quieted and set at rest against any and all claims of appellees and each of them for a period of 20 years from August 20, 1911, and for all other and proper relief.

[1][2] Appellees filed separate demurrers to the amended complaint which were sustained, and, the appellant failing and refusing to plead further, judgment was rendered against her that she take nothing. The court's rulings in sustaining the respective demurrers to the amended complaint are each assigned as error.

Section 1127, Burns' R. S. 1914, defines color of title as follows:

“The purchaser in good faith at any judicial or tax sale, made by the proper person or officer, has color of title within the meaning of this act, whether such person or officer had sufficient authority to sell or not, unless the want of authority was known to the purchaser at the time of the sale; and the rights of the purchaser shall pass to his assignees or representatives.”

Section 1128, Burns' R. S. 1914, provides as follows:

“Any occupant of land who can show a connected...