Malone v. Kitchen

• Decision Date: 12 December 1922
• Docket Number: No. 11368.,11368.
• Citation: 137 N.E. 562,79 Ind.App. 119
• Parties: MALONE, Trustee of Liberty School Tp., v. KITCHEN.
• Court: Indiana Appellate Court

79 Ind.App. 119

137 N.E. 562

MALONE, Trustee of Liberty School Tp.,

v.KITCHEN.

No. 11368.

Appellate Court of Indiana, Division No. 1.

Dec. 12, 1922.

Appeal from Circuit Court, White County; Benj. F. Carr, Judge.

Action by Elizabeth R. Kitchen against James H. Malone, trustee of Liberty School Township, to enjoin defendant from the sale of a schoolhouse and to quiet plaintiff's title to the land upon which the schoolhouse was situate. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 135 N. E. 496.

Palmer & Marvin, of Monticello, for appellant.

W. S. Bushnell and L. D. Carey, both of Monticello, for appellee.

REMY, J.

On February 21, 1873, Thomas B. Moore, being the owner in fee simple of the real estate here in controversy, conveyed the same by warranty deed to “school district No. 8, in Liberty township, of White county, Ind., for the sum of one dollar,” the deed reciting that the conveyance was for “so long as the foregoing land shall be used for a public school.” Soon after the conveyance, the trustee of the township took possession of the real estate, and erected thereon a permanent school building, and caused the same to be occupied and used for school purposes, which building was continuously used for school purposes until April, 1920, since which time no part of the building or premises has been so used. In the summer of 1921, appellant, as trustee of the township, gave notice that on August 31, 1921, he would offer for sale, and sell, such school building to the highest bidder. On August 25, 1921, appellee, claiming to be the owner of the school building and premises, commenced this suit to enjoin the sale of the building and to quiet her title. The complaint, which pleads the above facts, proceeds upon the theory that the building and premises were no longer used by the township for school purposes, and that therefore the township had abandoned to appellee, who asserts ownership, any title or claim it had thereto. Without demurring to the complaint, appellant filed an answer admitting that he is trustee of the township; that all the right, title, or interest the township has in the real estate, or in the school building erected thereon, is derived from and through the deed of conveyance from Moore in 1873, under which the township took possession of the real estate, and erected thereon the building, and caused the same to be occupied for school purposes continuously thereafter, until April, 1920. Appellant further admits in his answer that appellee is vested of whatever rights James B. Moore would have in the real estate and school building, if he should now be living. It is also averred in the answer that the school building has not been abandoned; that appellant has had under consideration the future abandonment of the building, but has not acted thereupon; and that his intent was, and is, not to abandon the building until the same has been disposed of by the township, under the forms of law applicable to the sale of school buildings. A demurrer to the answer was overruled, and the cause was tried by the court. By a special finding, the trial court found the facts substantially as alleged in the complaint and admitted in the answer, and by conclusions of law found the law to be with appellee. Motions by appellant in arrest of judgment and for a new trial having been overruled, judgment was rendered in favor of appellee, enjoining the sale of the building, and quieting appellee's title as prayed.

Errors assigned by appellant, and which have not been waived, are: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) overruling motion in arrest of judgment; (3) action of the court in failing “to trace back the demurrer of appellee to appellant's answer and sustain the same against the complaint”; and (4) action of the court in its conclusions of law.

[1][2] No question is presented by the first assigned error. Riley v. First Trust Co., 65 Ind. App. 577, 117 N. E. 675. Inasmuch as the reasons assigned in support of the motion in arrest of judgment...