Matthews v. Adoniram Grand Lodge of Perfection, Ancient Accepted Scottish Rite, 18963

• Decision Date: 30 December 1958
• Docket Number: No. 18963,18963
• Citation: 154 N.E.2d 806,129 Ind.App. 395
• Parties: Judd H. MATTHEWS, Appellant, v. ADONIRAM GRAND LODGE OF PERFECTION, ANCIENT ACCEPTED SCOTTISH RITE, N. J. M., Appellee.
• Court: Indiana Appellate Court

Page 806

154 N.E.2d 806

129 Ind.App. 395

Judd H. MATTHEWS, Appellant, v. ADONIRAM GRAND LODGE OF PERFECTION, ANCIENT ACCEPTED

SCOTTISH RITE, N. J. M., Appellee.

No. 18963.

Appellate Court of Indiana, In Banc.

Dec. 30, 1958.

Rehearing Denied Feb. 2, 1959.

George M. Bowser, D. James Snodgrass, Warsaw, for appellant.

Tony Foster, Paul Summers and John Hiner, of Bingham, Summers & Spilman, Indianapolis, Byron Kennedy, of Rockhill, Vandeveer, Kennedy & Lee, Warsaw, for appellee.

COOPER, Judge.

This appeal is from an action wherein the appellee brought an action in two paragraphs against the appellant, Judd H. Matthews, in the Kosciusko Circuit Court for possession of certain real property and the second paragraph seeking a judgment to quiet title thereto. The appellant herein filed a cross complaint to quiet title in himself.

The issues were properly formed by the appellant's answer to both paragraphs of appellee's complaint and by the appellee's answer to the appellant's cross complaint. Judgment was for appellee (plaintiff below) on both paragraphs and against appellant. The error assigned before us is the trial court's action in overruling the appellant's motion for a new trial.

The appellant's motion for a new trial, omitting the formal caption, is as follows:

1. The decision of the court on plaintiff's complaint is not sustained by sufficient evidence, and is contrary to law.

'2. The decision of the court on defendant's cross-complaint is contrary to law.'

Specifications 3, 4, 5, 6, 7, 8 and 9, and each sub-division thereof, relates to the admission, or exclusion, of certain evidence, both oral and written.

Due to the length of the motion for a new trial, we do not deem it necessary to set it forth in full, except what we have set out hereinbefore and specification No. 10, which is as follows:

'10. The decision of the court is not supported by sufficient evidence and is contrary to law.'

The record before us reveals that the appellant's motion for a new trial relating the admission and exclusion of certain evidence does not set forth the question, the objection and the ruling of the court thereon.

In many cases both the Supreme Court and our court have repeatedly held that to present error in the admission or exclusion of evidence, the motion for a new trial must set forth the question, objection, the ruling of the court and the answer, or at least the substance thereof. Ray v. State (1954) 233 Ind. 495, 120 N.E.2d 176, 121 N.E.2d 732; Gernhart v. State (1954) 233 Ind. 470, 120 N.E.2d 265; Altmeyer v. Norris (1954) 124 Ind.App. 470, 119 N.E.2d 31; Hire v. Pinkerton (1955) 126 Ind.App. 23, 127 N.E.2d 244; Henderson v. State (1955) 235 Ind. 132, 131 N.E.2d 326; Highshew v. Kushto (1956) (T.D.1956) 126 Ind.App. 584, 131 N.E.2d 652, 133 N.E.2d 76; § 1812, Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice.

Specification No. 4 asserts error in excluding a certain exhibit in evidence upon objection by the appellee.

It affirmatively appears that the appellant in his motion for a new trial does not state the grounds upon which the objection was based or the court's ruling thereon, and, is, therefore, subject to the same infirmities as are pointed out hereinabove. See Mustafov v. Metropolitan Life Ins. Co. (1955) 125 Ind.App. 388, 125 N.E.2d 824; Inter-Ocean Casualty Co. v. Wilkins (1932) (T.D.1933) 96 Ind.App. 231, 182 N.E. 252.

The appellant's motion for a new trial fails wholly to comply with the above-stated rule of law; therefore, no question is presented for our determination by the appellant's specifications Nos. 3, 4, 5, 6, 7, 8, 9 and each sub-division thereof. This leaves the only undisposed of specifications Nos. 1, 2 and 10 of the appellant's motion for a new trial, which, of course, requires a review and consideration of the evidence.

Some of the undisputed facts in the record before us reveal that the appellant and his brother, Webb, were the owners of the real estate involved, having purchased it in the mid-twenties; that they mortgaged the real estate to the Warsaw Building & Loan Association; that the mortgage was foreclosed on June 1, 1935; that the Sheriff's sale was had thereunder on June 29, 1935; that the Sheriff's Certificate of Sale was assigned to Elmer E. Matthews on the same day; that the Sheriff's deed to Elmer E. Matthews was delivered to him on July 18, 1936; that the said Elmer E. Matthews died testate on the 6th day of February, 1940; and his will devised the real estate involved in this appeal to his sister, Margaret Matthews; that the said Margaret Matthews died testate on the 13th day of April, 1943, and her will devised the real estate herein to the appellee.

The appellant herein in his first paragraph of argument makes the following statement:

'The Appellee--Lodge brought this law suit, for possession of the real estate, and to quiet title thereto, against the Appellant; and the burden lay upon Appellee to prove its title herein, both legal and equitable. Appellee made its prima facie case all right, by simply showing an apparent chain of legal title to the Appellee from assignment of Sheriff's Certificate of Sale to Appellant's brother, Elmer Matthews, issuance of Sheriff's deed thereunder to Elmer, a general devise by Elmer to the sister Margaret, and thence by a general devise by Margaret to the Appellee.' (Our emphasis.)

Thus, it is apparent that the appellant concedes that the appellee made a prima facie case by showing legal title in said appellee.

It is the general rule of law that legal record title is the highest evidence of ownership and necessarily not easily defeated. Sheets v. Stiefel (1947) 117 Ind.App. 584, 74 N.E.2d 921; Philbin v. Carr (1921) (T.D.1921) 75 Ind.App. 560, 129 N.E. 19, 129 N.E. 706; Norling v. Bailey (1951) 121 Ind.App. 457, 459, 98 N.E.2d 513, 99 N.E.2d 439.

Our court stated, among other things, in the case of Philbin v. Carr, supra, 75 Ind.App. at pages 581 and 582, 129 N.E. at page 27:

'In all civilized countries the subject of real estate titles is regarded as of sufficient public importance to justify state regulation. The legislature of our state long ago adopted regulatory measures on this subject, declared that all conveyances of land shall be by deed in writing, and prescribed a plan by which the title to every tract of land may be made a matter of public record. § 3936 et seq. Burns 1914, § 2915 et seq. R.S.1881. The legislature has provided also the manner in which lands may be devised and wills recorded. § 3112 et seq. Burns 1914, § 2556 et seq. R.S.1881. A title evidenced by conveyances, wills, decrees of court, and proof of heirship, is commonly called a 'legal' title--in contradistinction to an 'equitable' title. It is the policy of the law to protect land titles created in accordance with the plan prescribed by the Legislature. In this connection it should be observed that a prominent feature of the statute of frauds and of the statute of trusts is that they serve effectively to safeguard legal titles. §§ 7462 et seq., 4012 et seq. Burns' 1914, §§ 4904 et seq., 2969 et seq. R.S.1881.

'A record title is the highest evidence of ownership, and is not easily defeated.'

Furthermore, 'right to possession of premises is presumed in favor of a person in whom 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 805.

It, therefore, necessarily follows that by the admissions made by the appellant as to the appellee making a prima facie case and the foregoing general rule of law applicable to the question of title and possession, the decision of the trial court is sustained by sufficient evidence and not contrary to law. This answers the assigned specification No. 1 of the appellant's motion for a new trial and leaves only specifications No. 2 and No. 10 to be disposed of, which said specifications we have set out hereinbefore.

First, the appellant's cross complaint merely states that 'he is the owner of the equitable title to the following described real estate * * *'. It is the appellant's contention that 'the purchase money for the sheriff's certificate was furnished by the appellant, Judd Matthews, with the understanding that Judd Matthews was the equitable owner of the property; that the trust is both express and resulting'.

Notwithstanding the general rule of law that a complaint must proceeding upon some definite theory (see the case of Millspaugh v. Northern Indiana Public Service Co. (1938) 104 Ind.App. 540, 547, 12 N.E.2d 396), it is apparent from the record that the appellant's cross complaint was framed and his cause of action grounded upon the theory that some type of a trust existed between the appellant and his deceased brother, Elmer Matthews. The issue made by the cross complaint was tried on this theory before the trial court, and the trial court's judgment infers that the appellant failed to prove his case on any theory.

It is the law in Indiana that when an attempt is made to impress a trust upon real property when legal title is held by another, that the burden of establishing said trust is upon the one asserting, or claiming the benefit of the trust, and this is especially so where the issue of the real property being allegedly held in trust was rendered by him. It is also well established that to constitute a trust, such as the appellant herein maintains, the terms thereof must be certainly and definitely established. Costs v. Costa (1953) 124 Ind.App. 128, 115 N.E.2d 516; Bullerdick v. Miller (1926) 85 Ind.App. 369, 152 N.E. 280.

Where as in this cause the appellant undertook the initial burden of proving that he was the owner of the equitable title to the real estate involved, the finding of the court on that issue was negative to him and he is, of course, without effective position to assert the insufficiency of the evidence to support the finding in that...