Kline v. Indiana Trust Co.
| Decision Date | 21 December 1919 |
| Docket Number | No. 9976.,9976. |
| Citation | 74 Ind.App. 351,125 N.E. 434 |
| Parties | KLINE et ux. v. INDIANA TRUST CO. et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.
Action by the Indiana Trust Company, trustee under the last will of Peter Lieber, against Charles M. Kline and Mary D. Kline, his wife, with cross-action by defendant Mary D. Kline. Judgment for plaintiff, a new trial was denied, and defendants appeal. Affirmed.
Alfred R. Hovey, Harding W. Hovey, and John W. Bowlus, all of Indianapolis, and Rogers & Smith, of Lebanon, for appellants.
Ryan, Ruckelshaus & Ryan, of Indianapolis, for appellee.
Appellee commenced this action by filing a complaint against appellants, in which it alleged, in substance, among other things, that appellant Charles M. Kline was in possession of certain real estate in the city of Indianapolis, Ind., belonging to the estate of Peter Lieber, deceased; that he held such possession by virtue of a lease from the said Peter Lieber, running for five years from August 1, 1911, which provides that the same should terminate at once without notice or demand, at the option of the lessor, on failure to pay the rent therefor when due, or to comply with any of the conditions or covenants thereof; that among said conditions and covenants were the following: That said premises were to be used as a feed store, and for no other purpose, and that no immoral practices should be permitted thereon; that the said appellant had violated said conditions and covenants, and had failed to pay rent as required by the terms of said lease; that by reason of said facts appellee had declared said lease forfeited, in accordance with the option contained therein; that appellant, Mary D. Kline, is the wife of her coappellant, and claims some right or interest in said real estate and the building situated thereon, the nature of which is unknown to appellee; that said appellant has no interest therein. Demand for judgment against both appellants for possession of said real estate; that said lease be canceled and annulled, and for $500 damages. Afterwards appellees filed a supplemental complaint, in which it alleged, among other things, that said lease had expired by limitation of time, but that said Charles M. Kline, since the expiration of his tenancy, has wrongfully and unlawfully held over, and still retains, possession of said real estate, to its damage in the sum of $500. Demand for judgment for possession and damages. Appellant Mary D. Kline filed an answer in general denial to appellee's original complaint. Appellant Charles M. Kline filed an answer thereto in three paragraphs. The first is in general denial. The second relates to the charge in the complaint with reference to a failure to pay the rent when due, and alleges facts on which it bases a waiver of the right to assert a forfeiture of the lease because of any failure in that regard. It also contains an express denial that said premises had been used for immoral purposes. The third paragraph alleges that subsequent to the execution of said lease it was agreed between the parties that said premises should be used for a dwelling and rooming house instead of a feed store; that in pursuance of such agreement, and with knowledge of its use, appellee accepted the rent therefor; that said premises had never been used for immoral purposes, but had always been used, and was then being used, as a dwelling and rooming house, and for no other purpose. Both appellants filed an answer in general denial to appellee's supplemental complaint, and at the same time, which was several months after they had filed their respective answers to appellee's original complaint, appellant Mary D. Kline filed a cross-complaint against appellee, in which she alleged in substance, among other things, that Peter Lieber, in September, 1911, was the owner in fee simple of the real estate described in the complaint; that he was, at the time, residing temporarily in Germany, and was represented in Marion county by the Indiana Trust Company and Albert Lieber, in all matters pertaining to the rental of his real estate there situated; that said agents approached the cross-complainant, and suggested to her that she lease said real estate for a period of years, and that she erect thereon a one-story dwelling house to be used for 10 years, and that she then add a second story thereto; all to be occupied by her for a period of 20 years; that said Peter Lieber, acting through his said agents, proposed to lease her said property for said period of 20 years at $35 per month, she to pay the insurance and taxes on the improvements to be constructed thereon by her, and at the expiration of said 20 years she should turn over the improvements made by her to the owner of said property; that said lease was to be in writing, and said Peter Lieber, through his said agents, assured her that he would deliver to her a written lease for said property on the completion of said one-story dwelling house; that, relying on said promise, she took possession of said real estate, removed an old frame building therefrom, and erected a one-story dwelling house thereon; that on the completion of the same, about May, 1912, she moved therein, and has continued to occupy it ever since; that she entered upon and took possession of said real estate, and constructed said building thereon, in compliance with her said contract between her and said Peter Lieber, acting through said agents; that she paid all rent, insurance and taxes thereon to January, 1916; that she fully accepted said contract, and has in every way performed all the conditions thereof on her part to be performed; that said Peter Lieber departed this life testate on or about September 18, 1915, without having executed to her a lease for said real estate; that by the terms of his will appellee has become a trustee of his property, with full power to lease the same; that appellee as such trustee has denied and repudiated said agreement, and has failed and refused to execute to her a lease in writing for said real estate in pursuance thereof. Prayer for a specific performance of said contract; that appellee be required by a decree of court to execute to her the lease agreed upon, as alleged; and that on its refusal to do so that a commissioner be appointed for such purpose. To this cross-complaint appellee filed an answer in general denial. The cause was submitted to the court for trial, resulting in a judgment in favor of appellee against both appellants for immediate and unconditional possession of the real estate in controversy, and for judgment against appellant Charles M. Kline for $455 damages. Appellants filed separate motions for a new trial, which were overruled, and have assigned these rulings of the court as the sole errors on which they rely for reversal.
[1] Appellant Charles M. Kline has stated only two propositions or points on his assignment of error. The first relates to the action of the court in excluding certain evidence, but as his motion for a new trial makes no reference to such ruling it cannot be considered. The second in effect waives all errors relating to the issues formed on the complaint and his answers thereto, by expressly stating that the only rights which he claims in this appeal are such as he has as the husband of his coappellant, and asking that such rights be protected in any mandate made by the court. We are therefore not required...
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