Miller v. Curry

• Decision Date: 30 April 1890
• Docket Number: 14,228
• Parties: Miller v. Curry et al
• Court: Indiana Supreme Court

24 N.E. 219

124 Ind. 48

Miller v. Curry et al

No. 14,228

Supreme Court of Indiana

April 30, 1890

Reported at: 124 Ind. 48 at 53.

From the Wells Circuit Court.

The judgment is affirmed as to the appellees, Elizabeth Curry Mary Studabaker, and Edwin R. Wilson, at the costs, as to them, of the appellant.

A. N Martin, for appellant.

E. R Wilson and J. J. Todd, for appellees.

OPINION

Elliott, J.

The appellant's complaint contains several paragraphs; the first is to quiet title, and the others allege that the appellant executed to Amos Curry, in his lifetime, an instrument, in form a deed, but which was in fact a mortgage. Elizabeth Curry, Mary Studabaker and Edwin R. Wilson filed an answer disclaiming any interest in the real estate in controversy, and alleging that they had never claimed any right, title to, or interest in it.

It is asserted by appellant's counsel that the court erred in overruling her demurrer to these answers, but counsel are in error. If it is true, as the demurrer admits, that the defendants had never claimed an interest in the land, the appellant had no cause of action against them. Their disclaimer fully answered a material allegation of the complaint, and was sufficient to defeat the action; for, if they had never claimed title, the plaintiff had no cause of action against them. The case is unlike that of a party in possession who, without denying or yielding possession, simply disclaims title. McAdams v. Lotton, 118 Ind. 1, 20 N.E. 523.

The material questions in the case arise on the special findings of fact made by the court, and the conclusions of law stated thereon, for the findings clearly show on what pleadings the cause was tried and the judgment rendered; so that if it were conceded that there was error in overruling the demurrer to the second paragraph of the answer for the reason that it professed to answer all of the paragraphs of the complaint, but did not, in fact, answer the first paragraph, the judgment could not be reversed, because it affirmatively appears that the ruling did not affect the merits of the case.

The facts contained in the special finding are, in substance, these: In November, 1876, the appellant became the owner of the real estate in controversy. On the 6th day of September, 1877, John W. Kenagy recovered a judgment against her, which became a lien on the real estate; on the 5th day of February, 1878, the Singer Manufacturing Company recovered a judgment against her; on the 13th day of January, 1879, Studabaker and Wiley recovered a judgment against her, and on the 17th day of November, 1879, Samuel Pemberton also recovered a judgment against her. Executions were issued on all of the judgments, and the appellant claimed the real estate as exempt from execution; but, notwithstanding her claim, the property was sold and she redeemed it from the sale. The property was sold for taxes at various times, and deeds issued to the purchasers. On the 3d day of February, 1883, Amos Curry lent to the appellant four hundred dollars, and to secure the payment of the money borrowed she executed to him a deed, absolute on its face; Curry, at the same time, executed a written agreement wherein it was recited that he had advanced four hundred dollars to the appellant, and promised to execute a quitclaim deed to Mary J. English in the event that the money lent to the appellant was paid within ninety days. On the 7th day of March, 1883, the appellant executed to Curry another quitclaim deed for the property; Curry, at the same time, agreed in writing to reconvey the real estate to the appellant upon the payment of the money lent to her and paid out for her. At the request of the appellant Curry paid to the holder of one of the tax-deeds $ 200, and received a quitclaim deed, and he also paid other tax claims and liens by her direction. Curry took possession of the land in October, 1883, and continued in undisturbed possession until the 17th day of September, 1885. While he was in possession he made valuable and permanent improvements; all of the improvements were made by him in good faith, and in the belief that he was the owner of the land. The rental value of the land was fifty dollars per year. On the 17th day of September, 1885, Curry died, leaving a will, which was duly admitted to probate, and Hugh Dougherty appointed administrator with the will annexed. Amos Curry devised the real estate in controversy to his son, David F. Curry, and provided that all property devised to his son David F. should be placed in the hands of trustees. Hugh Dougherty and David Studabaker were duly appointed such trustees, and are now in possession of the property. On the 21st day of November, 1885, the appellant demanded a reconveyance of the land, but the parties refused to reconvey. At various times the appellant paid Amos Curry sums of money, aggregating four hundred dollars. The conclusions of law stated are, in substance, these:

1st. The instruments executed to Amos Curry by the appellant are mortgages, and not absolute deeds of conveyance.

2d. The judgments mentioned in the finding of facts are liens on the land in the hands of Hugh Dougherty, the administrator and trustee, and David Studabaker, trustee.

3d. Dougherty, as administrator, is entitled to the value of the improvements made by Curry while in possession, and he is also entitled to a lien for the money paid to the...