McConnell v. Fulmer

• Decision Date: 16 May 1952
• Docket Number: No. 28840,28840
• Citation: 230 Ind. 576,105 N.E.2d 817
• Parties: McCONNELL v. FULMER.
• Court: Indiana Supreme Court

Page 817

105 N.E.2d 817

230 Ind. 576

McCONNELL v. FULMER.

No. 28840.

Supreme Court of Indiana.

May 16, 1952.

Arthur T. Mayfield, Garth B. Melson, Indianapolis, for appellant.

Frank W. Morton, Indianapolis, Noble Wible, Thomas C. Tumbove, Indianapolis, for appellee.

DRAPER, Judge.

Appellee filed her complaint in three paragraphs, the first for cancellation and rescission of a deed alleged to have been procured from her by fraud and undue influence; the second for rescission for breach of conditions subsequent and to impress a constructive trust on real estate to prevent the consummation of a fraud; the third for the appointment of a receiver pendente lite.

The court appointed a receiver. This appeal is from the interlocutory order making said appointment.

The appellee is a widow eighty-four years of age. Since her husband's death in 1912 she has lived in the real estate in question with the appellant, a daughter of her deceased husband, who was seventeen years of age when the husband and father died. In March 1950 she deeded the property to the appellant. She was not represented by counsel, and she received no money for the deed, but it was her understanding that she was to have a home there as long as she lived, and it is admitted by everyone that such is the fact. ¹

The property consists of four apartments three of which bring an aggregate rental of $130 per month. The appellant now occupies the other apartment, the appellee having left and moved in with friends. The property is worth about seven or eight thousand dollars.

The parties have lived together thirty-nine years. For many years the appellant's invalid husband, now deceased, lived with them and the appellee assisted in caring for him. The appellant worked during those years and paid the grocery bills. They all lived together as a family, the appellant and appellee each contributing whatever income they had from any source for the common upkeep of the home. After receiving the deed the appellant mortgaged the property for $3,000. The payments on the mortgage are $50 a month, but the appellant has been paying $60 a month. With the proceeds of the mortgage the appellant converted the property from three apartments to four, using the money obtained by the loan for that purpose and adding to that amount about $1,000 of her own money. She also paid delinquent taxes in the sum of $104.17. The taxes are now paid in full to date. The appellant keeps an itemized accurate account of all income and expenses of the house. The gross income from rentals since the deed was executed has been $2,154.04 and the expenses, including minor repairs and taxes, has been $2,116.48. The house has been kept in good repair. During the thirty years before the execution of the deed the appellant paid about $4,000 for repairs on the house. In 1920 she obtained a loan of $2,000 and remodeled the downstairs. No part of that money was repaid to her by the appellee.

The appellee testified that appellant kept after her to sign the deed. She did not remember what conversations she had with the appellant before signing the deed, but did say the appellant wanted to control the property and collect the rents and the appellant has collected the rents.

On July 26, 1950, the appellee went to a Mrs. Habel's to live and remained there about four weeks, the appellant paying her expenses. It seems that she went there because she complained about the workmen smoking and the manner in which they were doing the work. She later went to the home of appellant's sister where she stayed about six weeks while the house was being repaired.

In January of 1951 she was injured by a fall. The appellant employed and paid a nurse who stayed with the appellee until May 4th. Shortly following her recovery the appellee lost the keys to the house. This brought on an argument and the appellee went to live with the Wibles, where she is now residing. She has keys to the property in question and goes there when she pleases. After she left she was asked to return home, but has refused to do so. The appellant has offered to pay the Wibles for room and board for the appellee, but Mr. Wible refused. The testimony of the nurse indicates that the appellee was well treated by the appellant and was provided with everything for her comfort and convenience.

The appellee thought there was undue intimacy between the appellant and a seventy year old workman. She mentioned no facts or circumstances supportive of such a belief. It was denied by the appellant. It appears that the appellant has used the word 'damn' when she became very impatient with the appellee. The appellant's sister, who never lived with these parties, but with whom the appellee stayed about six weeks, presented to the appellee ouija board messages and other such nonsense, and this distressed the appellee, who is the widow of a Baptist minister. The appellee and appellant would sometimes have arguments, then they would kiss and make up, and go along as before.

Subdivisions 1, 3 and 7 of § 3-2601, Burns' Ind.Stat., 1946 Repl., upon which the appellee relies, are set out in the margin. ² We are not now called upon to determine the ultimate rights of the parties. The question before us is whether the court erred in appointing a receiver pendente lite.

A receiver may be appointed to preserve the property involved, or the rents and profits thereof, during the pendency of a suit to set aside a fraudulent conveyance, or in the language of our statute, 'to vacate a fraudulent purchase of property.' But the power is one to be exercised cautiously, 37...