Neal v. Baker

• Decision Date: 29 October 1926
• Docket Number: No. 25313.,25313.
• Citation: 153 N.E. 768,198 Ind. 393
• Parties: NEAL et al. v. BAKER.
• Court: Indiana Supreme Court

198 Ind. 393

153 N.E. 768

NEAL et al.

v.BAKER.

No. 25313.

Supreme Court of Indiana.

Oct. 29, 1926.

Appeal from Sullivan Circuit Court; W. F. Wood, Judge.

Action by Essie F. Baker against Alfred Neal and others. From a judgment for plaintiff, and an order overruling a motion for a new trial, defendants appeal. Transferred to the Supreme Court, under subdivision 2, § 1357, Burns' Ann. St. 1926 (section 10, c. 247, Acts 1901). Reversed, with directions.

Superseding former opinion in 147 N. E. 635.

Emison & Hoover, Kessinger & Hill, and D. Frank Culbertson, all of Vincennes, and Hays & Hays, of Sullivan, for appellants.

J. W. Lindley and Charles H. Bedwell, both of Sullivan, James A. Jones, of Bicknell, and Shake & Kimmell, of Vincennes, for appellee.

PER CURIAM.

Appellee, the plaintiff below, commenced an action for specific performance of a contract alleged to have been made by the ancestor of appellants, the defendants below, to convey to her a certain described quarter section of land in Knox county, Ind. She afterward filed a second paragraph alleging substantially the same facts that had been alleged in the original complaint, except for the substitution in the second paragraph of an averment, that, by reason of being the heirs of Caroline Haper, the defendants “are claiming to be the owners of said described real estate,” in place of an averment in the original complaint “that by reason of said heirship said defendants *** now are the owners of said described real estate,” and the substitution therein of formal averments such as are usually found in a complaint to quiet an alleged equitable title against claims of the defendants adverse thereto, and of a demand that her title be quieted instead of the averments that, by reason of alleged promises of defendants' ancestors, plaintiff was entitled to a decree of specific performance, and the demand for a decree of specific performance and the appointment of a commissioner to convey the real estate in question to plaintiff, which the original complaint had contained. A third paragraph was also filed which alleged that “plaintiff is the owner in fee simple of the equitable title to” the real estate (describing it), and that defendants were claiming some interest in said real estate, adverse to plaintiff's right, which was unfounded and a cloud upon her title, followed by a prayer that her title be quieted and for all proper relief. A motion to make the third paragraph of complaint more specific by stating the facts on which plaintiff based her alleged conclusion that she was the owner in fee simple of the equitable title to the real estate was overruled.

Appellants then demurred separately to each of the second and third paragraphs of complaint on the ground that neither states facts sufficient to constitute a cause of action. which demurrer was overruled, and they excepted. The first paragraph of the complaint was then dismissed, and over an objection and exception by the defendants the cause was submitted to a jury, which returned a verdict in favor of the plaintiff. The defendants filed a motion for a new trial, alleging error in the submission of the, cause for trial by a jury and in the giving and refusal of certain instructions, and insisting that the verdict was not sustained by sufficient evidence, in that the letter written by defendants' ancestor and her husband did not constitute a conveyance of the land, nor a written memorandum of agreement to convey the land to plaintiff that was sufficient under the statute of frauds, but the court overruled this motion and entered a judgment in general terms quieting plaintiff's title. Overruling the demurrers to the second and third paragraphs of complaint and overruling the motion for a new trial are assigned as errors.

[1] The second paragraph of the complaint alleged, in substance, that Henry A. Haper and Caroline (Neal) Haper were husband and wife; that in 1898 they acquired by purchase the tract of land in question, containing 150 acres, more or less; that thereafter until the death of Henry A. Haper, on the 12th of August, 1920, they owned and possessed said real estate as tenants by entireties; that by the death of her said husband, Caroline Haper became the sole owner thereof, in fee simple; that afterward, on the 21st of July, 1921, Caroline Haper died intestate, leaving defendants as her sole heirs, by reason of which they “ever since her said death have been and now are claiming to be the owners of said described real estate, as tenants in common in fee simple.” That in March, 1901, plaintiff was a strong and healthy girl 19 years old, and she then entered the employment of said Henry A. and Caroline Haper as a servant in their home and remained in said employment continuously until the first of March, 1905. That from then until May, 1911, she did domestic work for various persons, but worked for Henry and Caroline Haper occasionally, from time to time. That during that period Henry and Caroline many times asked and begged plaintiff to return to their home and live with and work for them, and wrote her letters begging her to return and make her home with them. That in May, 1911, they were living alone in their home on said described real estate and then wrote, directed, and caused to be forwarded and delivered to plaintiff by United States mail a certain letter, signed by each of them, in which they said to plaintiff that they were lonely and had found it impossible longer to live in peace and comfort without the assistance and companionship of plaintiff; that they had talked the matter over fully and decided to say to the plaintiff that if she would return to their home and live with and care for them so long as they and each of them should live they, or the survivor of them, would give to her for such services and sacrifices, upon their death, their certain home farm of 150 acres, where they lived, the same being the real estate described. That said letter had been lost or destroyed, and for that reason plaintiff could not set out an exact copy. That upon receipt of said letter plaintiff went to the home of Henry and Caroline Haper and told them that she had concluded to accept the proposition made by them to her in said letter, and thereupon became, in all respects, a member of their family, and performed their household work and helped them with their farm work and their live stock, waited upon them in their periods of sickness, attended to their business affairs, and cared for them dutifully and administered to their wants and desires, and otherwise did and performed every duty and obligation imposed upon her in a faithful and obedient manner for more than ten years and so long as each of them lived, occupying a relationship like unto a member of their family, during which time she received no wages or compensation except her necessary clothing. That she did and performed every part of said agreement to be by her performed, and that said Henry A. Haper died and thereafter Caroline Haper died, but that both and each of them failed and omitted to convey and give said real estate to plaintiff by deed, devise, or otherwise, and that defendants had also failed, omitted, and refused to convey said described real estate to the plaintiff.

“Wherefore this plaintiff says that she is the equitable owner of the following described real estate *** [describing it] *** that said defendants and each of them are claiming an interest in said real estate adverse to plaintiff's rights, which claim of defendants and each of them is unfounded and without right and is a cloud upon plaintiff's title, and plaintiff asks to have her title to said real estate quieted as against the defendants and each of them, and plaintiff demands all other proper relief.”

The facts stated in the second paragraph were clearly insufficient to make out a cause of action for quieting plaintiff's title. They failed to show that any title whatever had become vested in her, even so much as arises from being actually in possession or having the right to possession. But what was alleged, at most, merely showed that she might be entitled to a decree vesting the title in her by way of specific performance, if all the surrounding facts should be such that a court of equity, in the exercise of a sound legal discretion, should determine that she has the right to such relief. But alleging a state of facts, which, if duly supported by other facts not stated and if unmodified by any facts tending to control the exercise by the chancellor of his discretion, would be sufficient to obtain a...