Kozanjieff v. Petroff
| Citation | 19 N.E.2d 563,215 Ind. 286 |
| Decision Date | 06 March 1939 |
| Docket Number | 27133. |
| Parties | KOZANJIEFF et ux. v. PETROFF. |
| Court | Supreme Court of Indiana |
Appeal from Superior Court, Lake County; Homer E Sackett, judge.
Stiles & Reynolds, of Gary, and Conroy & Glendening, of Hammond, for appellants.
J Edwin Smith, of Gary, for appellee.
The appellee, Nedan Petroff, brought an action against the appellants, Troschko Kozanjieff and Mary Kozanjieff, husband and wife, to quiet title to certain real estate located in the City of Gary, in Lake County, Indiana. The appellants filed a cross-complaint in three paragraphs, the first paragraph seeking to quiet title to said real estate in Troschko Kozanjieff, the second seeking to quiet title to an undivided one-third of said real estate in Mary Kozanjieff and the third, designated as the separate cross-complaint of Troschko Kozanjieff asking to have the sheriff's deed, on which appellee based his claim of title, declared null and void. The issues were formed on this complaint and paragraphs of cross-complaint and the answers thereto and upon the trial of the cause by the court special findings were made, conclusions of law stated thereon and judgment entered in accordance therewith.
The appellant Troschko Kozanjieff, separately, assigned error on the action of the court in sustaining appellee's demurrer to the third paragraph of cross-complaint. The appellant Mary Kozanjieff separately assigned error on the action of the court in overruling the separate demurrer to the second paragraph of reply to the second paragraph of cross-complaint. A third paragraph of appellants' assignment of errors was as follows:
'Now comes said appellants and for third paragraph of the assignment of errors, jointly, separately, and severally say that there is manifest error in the proceedings and judgment in said cause in this, to-wit:----
'1. The court erred in overruling the demurrer of said appellant, Mary Kozanjieff, to the second paragraph of reply to the second paragraph of cross-complaint, to which ruling, said cross-complainants separately and severally excepted.
'2. The court erred in the conclusions of law and each of them, stated upon the special finding of facts, to which said appellants separately and jointly excepted, to each conclusion of law.
'3. The court erred in overruling appellant's joint, separate and several motion for a new trial, to which ruling appellants jointly, separately and severally excepted.
'Wherefore, appellants jointly, separately and severally pray that the judgment in said cause be in all things reversed.'
The following material facts of the case were stated in the special findings: On June 1, 1931, the appellant Troschko Kozanjieff, then an unmarried man, was the owner of the fee simple title to certain real estate in Lake County, Indiana, which real estate was encumbered by a first mortgage. Said appellant, desiring to pay the debt secured by said mortgage, agreed with the appellee that, if the appellee would furnish sufficient funds to pay said debt and secure the release of said mortgage the appellant, to secure appellee, would execute and deliver to appellee a new mortgage which would constitute a first lien on said real estate. Pursuant to this agreement the appellee, on June 19, 1931, furnished to appellant the sum of $4,000, which amount was paid on said mortgage debt. Thereafter, on July 28, 1931, said appellant married the appellant Mary Kozanjieff. On September 30, 1931, the appellee on the demand of the holder of said mortgage, and to secure the release thereof, paid said mortgagee the additional sum of $506.79 and thereupon said mortgage was satisfied and released. Thereafter the appellant Troschko Kozanjieff refused to execute a mortgage to secure the repayment of the loan so made by the appellee. On March 6, 1932, the appellee, seeking to recover the amount so loaned to said appellant, filed a complaint in two paragraphs in the Lake Circuit Court against both appellants. Later the appellee dismissed said action as to the appellant Mary Kozanjieff, dismissed one paragraph of the complaint and then on the remaining paragraph procured a judgment for $3959.20 against appellant Troschko Kozanjieff for money had and received. Thereafter on September 14, 1933, the appellant Troschko Kozanjieff brought an action against the appellee to have said judgment set aside. This case was determined against said appellant.
Thereafter the appellee caused an execution to be issued on the said judgment he had procured against said appellant Troschko Kozanjieff and the sheriff failing to find any personal property belonging to said appellant levied on said above described real estate. Pursuant to said levy and execution said real estate, on July 5, 1934, was sold by said sheriff for $4000 to said appellee and a sheriff's certificate of sale was thereupon issued to said appellee. From the proceeds of the said sale the appellee received, and receipted therefor on his said judgment, the sum of $3839.71. On July 6, 1935, the appellee procured a sheriff's deed conveying said above described real estate to him 'to have and to hold * * * in as full and ample a manner as the same was held by Troschko Kozanjieff immediately before the levying of the aforesaid execution.' Since procuring the said sheriff's deed, the appellee has received rent on said real estate at the rate of $32.50 per month, has made improvements and repairs thereon in the sum of $358.70 and has made no accounting to the appellant Mary Kozanjieff for any part of said rentals.
Appellants' assignment of error, relating to the overruling of the motion for new trial, has been waived by their failure to present any points or authorities concerning this alleged error in their brief. Rules of the Supreme and Appellate Court, Rule 18, point sixth.
The alleged errors based on the sustaining of the appellee's demurrer to the third paragraph of the separate cross-complaint of Troschko Kozanjieff and the overruling of the demurrer of appellant Mary Kozanjieff to the second paragraph of reply to the second paragraph of cross-complaint present the same questions as are presented on the conclusions of law. It is, therefore, not necessary to consider these assigned errors separately. Goodwine v. Cadwallader, 1901, 158 Ind. 202, 205, 61 N.E. 939.
The appellee insists that the appellants' assignment of error is joint and that since the alleged errors only affect the appellants separately no question is presented by such joint assignment. It is our opinion that the assignments may fairly be construed as being both joint and several. Southern Indiana Ry. Co. v. Indianapolis, etc. R. Co., 1907, 168 Ind. 360, 81 N.E. 65, 13 L.R.A.,N.S., 197; Neibert v. Long, 1916, 184 Ind. 494, 111 N.E. 612. In Indiana a joint assignment of error by husband and wife is good if the error assigned is available to the wife. Eubank's Manual of Practice (2d Ed.) § 138, p. 293, Campbell v. Tomlinson, 1912, 178 Ind. 63, 66, 98 N.E. 720.
The court, by its first conclusion of law, concluded that the law was with the appellee on his complaint and against the appellant Troschko Kozanjieff, and that said appellee is entitled to have his title quieted and set at rest as against the said appellant. A plaintiff in a quiet title suit must recover on the strength of his own title. Ragsdale v. Mitchell, 1884, 97 Ind. 458; Tolleston Club of Chicago v. Carson, 1919, 188 Ind. 642, 651, 123 N.E. 169; Ault v. Miller, 1932, 203 Ind. 487, 493, 181 N.E. 35. In the case of Tolleston Club of Chicago v. Carson, supra, this court said, [188 Ind. 642, 123 N.E. 173.] In the case of Danforth v. Meeks, 1911, 176 Ind. 400, 96 N.E. 153, it was held that a plaintiff alleging a legal ownership to lands in a suit to quiet title could not recover if upon the trial the facts established disclosed that he was only the equitable owner of the lands.
In the instant case plaintiff, in his complaint, alleges that he is the owner, in fee simple, of the real estate in question that the defendants claim an interest therein adverse to the plaintiff's right, which claim is without right and unfounded and is a cloud upon plaintiff's title, and prays that the defendants' claim be declared null and void and that the plaintiff's title to said real estate be quieted. Since this complaint sets up a full legal ownership in the appellee, the appellee could only recover on a showing of such ownership. The facts specially found by the court, however, show that appellee bases his claim to legal ownership solely on the sheriff's deed issued to him at a judicial sale on an execution of a judgment against appellant Troschko Kozanjieff, in a case to which the appellant Mary Kozanjieff was not a party. ...
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