Lamb v. Conder

• Decision Date: 22 October 1975
• Docket Number: No. 1--1274A186A,1--1274A186A
• Citation: 166 Ind.App. 293,335 N.E.2d 625
• Parties: Ida LAMB et al., Plaintiffs-Appellants, v. Gary D. CONDER et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 625

335 N.E.2d 625

166 Ind.App. 293

Ida LAMB et al., Plaintiffs-Appellants, v. Gary D. CONDER et al., Defendants-Appellees.

No. 1--1274A186A.

Court of Appeals of Indiana, First District.

Oct. 22, 1975.

Rehearing Denied Nov. 25, 1975.

David S. McCrea, Edward F. McCrea, McCrea & McCrea, Bloomington, for plaintiffs-appellants.

James R. Cotner, Ronald L. Chapman, Sylvan W. Tackitt, Bloomington, for defendants-appellees.

Johnson A. Young, pro se.

ROBERTSON, Chief Judge.

The plaintiffs-appellants (Sisters) brought an action to set aside the deed by which their elderly brother, Alfred Young, conveyed his farm to the defendants-appellees (Conder), the present owners, alleging incompetency of the grantor, undue influence and gross inadequacy of consideration. The trial court entered judgment in favor of Conder and the Sisters bring this appeal contending that the trial court erred in not making special findings of fact and that the judgment is contrary to law.

We affirm.

This case arose from a conveyance of farm property. On September 15, 1972, Alfred Young, at the age of eighty-two, executed and delivered a warranty deed to conder conveying title to approximately sixty-two acres of farm land, a dwelling house, barn and other buildings. On the same date, Conder reconveyed to Alfred Young a life estate granting him the right to reside in the house on the property and collect rents therefrom. It was further provided that Conder was to pay the real estate taxes and maintain comprehensive insurance coverage in an amount equal to the fair market value of the property. The purchase price was $20,000.00.

The Sisters first contend that the trial court erred in not making special findings of fact. The basis for this contention is a statement made by the judge in open court and of record at the conclusion of final arguments:

'Neither one of you has asked me to make a finding of facts, but the nature of the case is such that I feel an obligation to do so before I render a decree.'

The Sisters assert that the court was referring to special findings of fact as provided for by Ind.Rules of Procedure, Trial Rule 52. The pertinent portion of the trial rule is T.R. 52(A) which reads as follows:

'Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court . . . shall find the facts specially and state its conclusions thereon.'

The Sisters concede that they did not request special findings of fact and, thus, were not entitled to them upon that basis. However, they argue that the statement of the trial court, as quoted above from the record, constituted a motion by the court to make special findings of fact and bound the court to do so on the basis of the language in T.R. 52(A) which reads, 'Upon its own motion . . . the court . . . shall find the facts specially.' It is argued that while the trial judge is under no duty to make special findings, once he announces to the parties that he will make findings the rule mandates that findings be made.

We are of the opinion that the Sisters' reading of T.R. 50(A) is in error. Other than specific classes of cases not applicable here, ¹ special findings are not required unless the parties request them in writing prior to the admission of evidence. Weiss v. Weiss (1974), Ind.App., 306 N.E.2d 120.

the portion of the rule upon which the Sisters rely does not mandate the trial court to make special findings of fact but merely authorizes the trial court to volunteer special findings even if the parties do not timely request them. See: Hunter v. Milhous (1974), Ind.App., 305 N.E.2d 448.

T.R. 52(D) provides that the court may make special findings of fact upon less than all the issues when special findings are made but are not required. The rule further states that such findings are recognized only as to those issues covered thereby and that the judgment or general finding controls as to all other issues not covered in the findings actually made.

Moreover, we are unable to perceive how the Sisters were prejudiced by the court's failure to make special findings of fact upon all of the issues in this case. If they felt that special findings of fact were necessary, the Sisters should have made a written request prior to the introduction of evidence. Had they done so, the trial court would have been obliged to make special findings of fact upon all issues of the case. Failing to do so, they cannot be heard to complain upon appeal that complete findings were not made.

Finally, it appears that the findings actually made by the trial court were sufficient to apprise the parties of the basis upon which judgment was entered.

The trial court did not err in making its findings.

The Sisters secondly contend that the judgment is contrary to law for the reason that the evidence is undisputed that Alfred Young was incompetent to execute the deed to his property on September 15, 1972.

The trial court found:

'That on September 15, 1972, Alfred Young had sufficient mind and memory to comprehend the nature and extent of his acts, to understand the nature of the business in which he was engaged, and to exercise his own will in reference to the management and disposition of his property.'

The Sisters agree that this is a proper statement of Indiana law on the degree of mental capacity required to execute a deed, ² but they argue that the evidence presented in this case leads only to the conclusion that Alfred Young was...