McKern v. Beck

• Decision Date: 17 March 1920
• Docket Number: No. 10373.,10373.
• Citation: 73 Ind.App. 92,126 N.E. 641
• Parties: McKERN et al. v. BECK et al.
• Court: Indiana Appellate Court

73 Ind.App. 92

126 N.E. 641

McKERN et al.

v.BECK et al.

No. 10373.

Appellate Court of Indiana, Division No. 2.

March 17, 1920.

Appeal from Circuit Court, Boone County; Joseph E. Comb, Judge.

Action by Albert Beck and another against Jack McKern and another. Judgment for plaintiffs, and defendants appeal. Affirmed.Ira M. Sharp, of Lebanon, for appellants.

Samuel Ashby, of Indianapolis, and Charles D. O'Rear, of Lebanon, for appellees.

NICHOLS, C. J.

This action by appellees against appellants and others was to quiet title to certain real estate in Boone county, Ind. The appellees' complaint was in the ordinary form of such actions. There was an answer in general denial to the complaint by part of the appellants who also filed eventually an amended second paragraph of cross-complaint which will hereafter be designated as cross-complaint. Appellees Beck and Randel filed their separate demurrers, and appellee Bevington filed his separate demurrer to said cross-complaint, each of which was sustained, and, cross-complainants refusing to amend the same and electing to stand thereon, judgment was rendered against them on said cross-complaint for costs. The cause was tried by the court, and judgment was rendered for appellees quieting their title to the real estate described in the complaint. After motion for a new trial, which was overruled, appellants now prosecute this appeal. The cross-complaint avers, in substance, as follows:

On the 20th day of February, 1890, Eliza H. Taylor, James L. Taylor and Rachael Taylor, his wife, William R. Taylor and Eliza J. Taylor, his wife, duly executed and delivered their deed of general warranty conveying the land therein, and in the complaint described, to Marion Taylor and Mary H. Taylor, his wife, jointly, and at their death said land to descend to their children equally, which deed was duly acknowledged and recorded in the recorder's office of Boone county, Ind. By said deed the grantors conveyed and warranted to the said Marion Taylor and Mary H. Taylor, his wife, for and during their natural lives, the said real estate, and conveyed the remainder in said land in fee simple to the children of said Marion Taylor and Mary H. Taylor, his wife, to wit, Lou E. Taylor, Gussie F. Taylor, Ollie F, Taylor, Cecil C. Taylor, and Rosa E. Taylor. By virtue of the aforesaid deed, said Marion and Mary H. Taylor, his wife, became and were the owners as tenants by entirety of said land for and during their natural lives, and said children were the owners and tenants in common of the remainder thereof in fee, subject only to the said life estate. On January 26, 1897, said Marion Taylor and Mary H. Taylor, his wife, and the above-mentioned children, were residing on said land, and at that time said children were minors and under the age of 21 years; that on said date the said children were living with their father and mother, were under the control of the said Marion Taylor, and had no legal guardian of either person or property. On said date, the said Marion Taylor for the purpose and with the intent to cheat, wrong, and defraud the said children out of the said lands, and to deprive them of any interest in said lands as the owners thereof, filed his complaint in the Boone circuit court making his said children parties thereto, and averring in said complaint that:

One William R. Taylor died in the year 1889 in said county, leaving a widow, Eliza H. Taylor, and his sons, James L., William R., and the said Marion Taylor as his sole and only heirs at law. At the time of the death of the said William R. Taylor, he was the owner in fee simple of a large tract of land which descended to his widow and said three sons. On the 20th day of February, 1890, the said widow and the three sons made and entered into an agreement for the partition of all of said real estate. It was then and there agreed as to the specific portion of said real estate which each of said heirs should have, and that they should convey to one another by proper deed of conveyance the real estate which had been agreed between the parties should be set off to each. There was assigned to the said Marion Taylor as his portion of the real estate descended to him from his father the real estate involved in this action. The said widow and her three sons all joined in respective deeds to each of the sons of said real estate for such grantee's respective interest therein, but in making such conveyance, instead of conveying to the said Marion Taylor his interest which it was agreed that he should receive in said real estate, they conveyed the same to said Marion Taylor and Mary H. Taylor, his wife, and at their death to their children equally. At the time of the execution of the said deed, the said Marion Taylor and Mary H. Taylor by their marriage had five children, all of whom are named above and were made defendants in said action, and all of whom were minors. At the time said respective deeds were written and signed by the parties, it is averred that Marion Taylor had no knowledge that the same was being made to him and his wife jointly and at their death to descend to their children equally. He was unable to read, and the grantor did not inform him that said deed was so made and that he had no knowledge thereof. The complaint further averred that the defendants therein being the minor children had no equity or interest in said real estate, but the same was the sole property of plaintiff, having descended to him as an heir of William R. Taylor, deceased. Nothing was paid to the said Marion Taylor for his interest in said real estate, and he was not consulted by the grantors in said deed, nor by the person who prepared the deed as to whom said real estate should be conveyed, and under the agreement between himself and his said tenants in common his interest in said real estate was to have been conveyed to him. The taxes were delinquent, and the amount thereof, with costs, was nearly $500, and the time of redemption of said real estate was February 11, 1897. Plaintiff had no property, except some personal property of not much value, and he was unable to raise money to redeem the said land from sale by virtue of said taxes, and owing to the condition of the title he was unable to mortgage or sell any part thereof to raise money to redeem it from the lien of said taxes. In said complaint there was a prayer that Marion Taylor be declared the sole owner of said real estate and that a commissioner be appointed with instructions to execute and deliver to him a deed therefor.

The said Marion Taylor caused a summons to be issued on said complaint for all of his children, all of whom were named as defendants in said complaint, and such summons was duly served upon said defendants and due return made thereof. There were no other defendants to said action than the said children of the said Marion Taylor, except the said Mary H. Taylor, his wife, who made default, and permitted a decree to be entered against her. After default of the said children, a guardian ad litem was appointed by the court upon the request of the said Marion Taylor, and such guardian ad litem accepted such appointment with the understanding and belief that his duties were merely formal. Having no knowledge of the nature of said action, nor how the same was to affect the interest of the said children for whom he acted, he accepted such appointment only for the purpose of accommodating the said Marion Taylor in the procurement of the order and decree of the court aforesaid. Such guardian ad litem filed his answer in general denial, after filing which he gave no further attention to the cause, and took no further steps to protect the interests of said infants. The cause was submitted to the court for trial. No one was heard at said trial except the said Marion Taylor. There was no objection, exception, or cross-examination of witnesses, or other participation by said guardian ad litem or any other person, for the said children upon the hearing of such cause. The court rendered a decree in favor of said Marion Taylor purporting to set aside and cancel the said deed and purporting to declare and decree the title to said land should vest absolutely and unconditionally in said Marion Taylor. The court thereupon appointed John A. Abbott a commissioner of the court who was ordered to execute and deliver to said Marion Taylor a deed of conveyance for said real estate. Cross-complainants further aver that, at the time of the hearing of said cause and rendition of said decree, the judge of said court believed, from the statements and evidence of said Marion Taylor and his attorney, and from the actions and conduct of said guardian ad litem, that said infant children had no right, title, or interest to said real estate or any part thereof, and was deceived and misled as to the real nature of the action, and that had such judge known the facts he would not have entered said decree. Cross-complainants aver that said decree was void for the following reasons:

(1) It appears from the fact of the complaint so filed by said Marion Taylor that no cause of action of any kind, character, or description was set forth or charged in said complaint against the defendants thereto.

(2) That said complaint, if it contained a legal and sufficient statement of any cause of action against...