Klingler v. Ottinger, No. 27251.

Docket NºNo. 27251.
Citation216 Ind. 9, 22 N.E.2d 805
Case DateOctober 11, 1939
CourtSupreme Court of Indiana

216 Ind. 9
22 N.E.2d 805


No. 27251.

Supreme Court of Indiana.

Oct. 11, 1939.

Action in ejectment by Carl Ottinger and others against George Klingler and others, wherein defendants filed a cross-complaint asking that their title be quieted against plaintiffs. Judgment for plaintiffs, and defendants appeal.


[22 N.E.2d 806]

Appeal from Boone Circuit Court; Ernest R. Steward, Judge.
Todd & McCormack, of Indianapolis, and E. M. Hornaday, of Lebanon, for appellants.

Scifres & Hollingsworth, of Lebanon, for appellees.

SHAKE, Judge.

Appellees brought this action to eject appellants from 32.5 acres of land in Boone County, claiming to own said land in fee simple as tenants by the entireties and asserting that appellants were unlawfully in possession. Appellants countered by way of cross-complaint, alleging that they owned the land in controversy and asking that their title be quieted against the appellees. No questions arise on the pleadings.

There was a trial without a jury and, upon request, the court made special findings of fact and stated conclusions of law. Judgment was entered in favor of appellees and appellants asked for a new trial, which was denied. The errors presented are: (1) that the court erred in each of its conclusions of law; (2) the court erred in admitting certain evidence offered by the appellees; (3) the court erred in refusing to admit certain evidence offered by appellants; (4) the decision of the court is contrary to law; and (5) the decision is not supported by sufficient evidence.

From the facts specially found by the court it appears that in February, 1931,

[22 N.E.2d 807]

Andrew Harmon was an unmarried adult and the owner of some 135 acres of farm land in Boone County, including the 32.5 acre tract in controversy. On or about February 15, 1931, appellants, who were husband and wife, became Harmon's tenants and moved on to said 32.5 acre tract, which they have since occupied. In the spring of 1935, Harmon executed and delivered to appellants a deed to said tract, which deed contained a clause reserving unto Harmon a life estate therein. Said deed recited a consideration of $1, but was made pursuant to an oral agreement to the effect that appellants would render certain services to Harmon by way of care and assistance during the remainder of his life. At the time of the execution of the deed it was mutually understood by the parties thereto that the same would not be recorded during Harmon's lifetime and that Harmon did not intend to make said conveyance effective, but reserved the right to recall the deed at his option. Appellants kept the deed at their home until about July 2, 1937.

On March 23, 1937, appellant George Klingler, as guardian, loaned Harmon $600 and took and recorded his mortgage on said 32.5 acre tract to secure the same. Subsequent to the execution of the deed by Harmon to appellants the former became dissatisfied with the agreement concerning services to be rendered by appellants in caring for and assisting him and on May 28, 1937, he leased his entire farm, including said 32.5 acre tract, to the appellee Carl Ottinger, for the term of one year, commencing March 1, 1938, reserving, however, the house and garden where said Harmon lived and the house and truck patch occupied and used by appellants. On July 2, 1937, Harmon sold and conveyed said 32.5 acre tract to appellees for a consideration of $1,500 and delivered to them a warranty deed therefor, which deed was recorded on the same day. As a part of the consideration appellees assumed and agreed to pay the $600 mortgage in favor of Klingler, guardian. Shortly after July 2, 1937, appellant George Klingler surrendered the unrecorded deed to Harmon, who destroyed it in the presence of the appellees. Harmon died intestate January 30, 1938.

The conclusions of law recite that the law is with the appellees; that there was no unconditional delivery of the deed from Harmon to appellants; that Harmon reserved the right to recall said deed and void the same and did so about July 2, 1937; that appellees were bona fide purchasers of said land for a valuable consideration; that appellants hold possession of said real estate unlawfully and without right; and that appellees are the owners of said land in fee simple as tenants by the entireties and entitled to the immediate possession thereof, with costs. There was a judgment on the complaint in favor of appellees for possession and costs and against appellants on their cross-complaint.

Some of the court's conclusions of law are clearly in the nature of findings of fact and these must be disregarded, since they are of no force as conclusions of law and can not aid the special findings. These do not, however, impair those parts of the conclusions of law that are otherwise proper. Hammann v. Mink, 1884, 99 Ind. 279, 288. It is not always easy to determine, in a given case, what are proper findings of fact and what are conclusions of law....

To continue reading

Request your trial
36 cases
  • Bohn Aluminum & Brass Co., Plant No. 9 v. Kinney, No. 2--772A28
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 August 1974
    ...the sufficiency of the evidence notwithstanding it should have been excluded upon proper and timely objection. Klingler v. Ottinger, 1939, 216 Ind. 9, 22 N.E.2d 805; Fetter v. Powers, 1948, 118 Ind.App. 367, 78 N.E.2d 555.' Hinshaw v. Waddell (1957), 128 Ind.App. 67, 72, 142 N.E.2d 640, 643......
  • Matthews v. Adoniram Grand Lodge of Perfection, Ancient Accepted Scottish Rite, No. 18963
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 December 1958
    ...the title is found * * * until a better right is shown; * * *.' 28 N.J.S. Ejectment § 85, p. 958. See, also, Klingler v. Ottinger (1939) 216 Ind. 9, 15, 22 N.E.2d It, therefore, necessarily follows that by the admissions made by the appellant as to the appellee making a prima facie case and......
  • Moss v. State, No. 2--1273A266
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 August 1975
    ...237 Ind. 144, 144 N.E.2d 705; Chicago District, etc., Corp. v. Evans (1946), 117 Ind.App. 280, 69 N.E.2d 627; Klingler v. Ottinger (1939), 216 Ind. 9, 22 N.E.2d See also Indianapolis Blue Print & Mfg. Co. v. Kennedy (1939), 215 Ind. 409, 19 N.E.2d 554. Relevant evidence, subject to exclusio......
  • Dayton Walther Corp. v. Caldwell, No. 480S103
    • United States
    • Indiana Supreme Court of Indiana
    • 17 April 1980
    ...such evidence might have been excluded if proper and timely objection had been made. Kern v. State, supra ; Klingler v. Ottinger, (1939) 216 Ind. 9, 22 N.E.2d 805; Ziegler v. Tipton Lumber Company, (1958) 128 Ind.App. 249, 147 N.E.2d 679; Chicago District, etc., Corp. v. Evans, (1946) 117 I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT