Neal v. Baker

• Decision Date: 30 April 1925
• Docket Number: No. 11997.,11997.
• Citation: 147 N.E. 635
• Parties: NEAL et al. v. BAKER.
• Court: Indiana Appellate Court

147 N.E. 635

NEAL et al.

v.BAKER.

No. 11997.

Appellate Court of Indiana.

April 30, 1925.

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

Action by Essie F. Baker against Alfred Neal and others. Judgment for plaintiff, and defendants appeal. Affirmed.Emison & Hoover, Kessinger & Hill, and D. Frank Culbertson, all of Vincennes, and Hays & Hays, of Sullivan, for appellants.

Shake & Kimmell, of Vincennes, James A. Jones, of Bicknell, and Lindley & Bedwell, of Sullivan, for appellee.

ENLOE, J.

Action by appellee to quiet title to real estate. To a complaint in two paragraphs upon which the cause was tried, the appellants answered by general denial, and by non est factum in five paragraphs. Upon the issues thus formed, there was a trial by jury and a verdict for the appellee, upon which judgment was rendered. The errors assigned and presented question: (a) The sufficiency of each paragraph of the complaint; (b) submitting the cause, over the objection of appellants, to a jury for trial; and (c) overruling the motion for a new trial. We shall consider the several alleged errors in the order presented.

The record discloses that the original complaint, in one paragraph, sought specific performance of an alleged agreement to convey certain lands. After issues were joined upon this paragraph of complaint, the appellee, by leave of court, filed her second and third paragraphs of complaint, by each of which she sought to have her title to the lands now in controversy quieted. There was a demurrer to each of these paragraphs, which was overruled. The first paragraph was then withdrawn, and we are therefore not now concerned with it sufficiency.

In the said second paragraph of complaint it was among other things, alleged: That from the 11th day of November, 1891, until the 12th day of August, 1920, Henry A. Haper and Caroline Haper were husband and wife; that they resided in Knox county, Ind.; that on the 24th day of February, 1898, the said Henry A. Haper and Caroline Haper acquired by purchase certain real estate in Knox county, Ind. (the said real estate being in said paragraph particularly described); that from the date of said purchase until the 12th day of August, 1920, the said Hapers owned and held said real estate as tenants by entireties; that Henry A. Haper died August 12, 1920, survived by his said wife, Caroline, who thereby became the sole owner of said real estate in fee simple; that Caroline Haper died on July 21, 1921, intestate, and that the appellants herein are her heirs at law; that since the death of Caroline Haper the appellants, by reason of such heirship, are claiming to be the owners of said real estate as tenants in common.

It is further averred that about March, 1901, the appellee, who was then a strong and healthy girl, 19 years of age, entered the employment of said Henry A. Haper and Caroline Haper as a helper and servant in their home, and so continuously remained until about March, 1905; that between March, 1905, and May, 1911, the appellee occasionally worked for said Hapers in their home as a servant; that during said last-mentioned period, on divers occasions, the said Hapers besought and begged the appellee to return to their home and to live with them and work for them; that the Hapers told her that they were lonely and depressed and that they had not been able to find another servant or companion as satisfactory and accommodating to them as this appellee had been; that during said time each of said Hapers wrote letters to the appellee, begging her to return and to make her home with them; that about May, 1911, the said Henry A. Haper and Caroline Haper, who were then living alone in their home situate on said described real estate, wrote, signed, directed, and caused to be forwarded and delivered to appellee by United States mail a certain letter, signed by each of them, in which they said to the appellee that they were lonely, and that they had found it to be impossible for them to longer live in peace and comfort without the assistance and companionship of appellee; that they had talked the matter over fully, and had decided to say to her that if she would come to them, 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 the death of the survivor of them, their certain “home farm” of 150 acres where they lived; that said “home farm” is the same real estate described in the complaint. It is then averred that diligent search has been made to find said letter, but that the same could not be found, and that therefore no copy could be attached as an exhibit to the complaint.

It is further alleged that upon receipt of said letter the appellee went to the home of said Hapers and told them that she had concluded to accept their proposition which they had made to her in said letter, and that she thereupon became in all respects a member of the said Haper family, and thereafter did and performed their household work and helped and assisted them with their farmwork and with their live stock; that she dutifully cared for the Hapers and administered to their desires and wants in all respects; that she waited upon them in sickness, attended to their business affairs, and otherwise did and performed every duty and obligation imposed upon her in a faithful and obedient manner for more than 10 years, and so long as each of them lived; that she continuously lived with said family for a period of more than 10 years after said agreement was entered into, during which time she received no wages or compensation, except that said Hapers furnished her necessary clothing; that the appellee did and performed every part of said agreement by her to be kept and performed, but the said Henry A. Haper and Caroline Haper failed to give said real estate to appellee by deed, devise, or otherwise, as they had promised to do; that appellants have refused to convey said real estate to appellee; that their claims therein are without right and unfounded. The appellee asked that her title to said lands be quieted as against the claims of appellants, and she asked for all proper relief.

The third paragraph alleged that the appellee was the owner of the equitable title to said real estate, describing it, and that each of the appellants was claiming an interest therein, which claim was without right, etc., and asked that her title be quieted.

[1] The appellants first contend that as this is an action to quiet title, it must be predicated upon a legal title, and cannot, as herein, be predicated upon an equitable title.

In Grissom v. Moore, 106 Ind. 296, 6 N. E. 629, 55 Am. Rep. 742, it was said:

“In the second paragraph of the complaint, the plaintiffs set out a state of facts which gave them an equitable title to the land in controversy. They asked to have it quieted. It was not necessary that they should have stated facts which would have been technically sufficient in an action for a specific enforcement of the agreement. In a suit to quiet title, it is only necessary that the plaintiff disclose, in his complaint, whether the title claimed is legal or equitable. If an equitable title is claimed, all the facts which go to maintain it may be shown. Equity treats that as done which should have been done.”

In Stanley v. Holliday, 130 Ind. 464, 30 N. E. 634, it was held that a complaint in which it was alleged that the plaintiff was “‘the owner by complete equitable title, and entitled to the possession of the’ real estate,” describing it, was good as against a demurrer. Under these authorities we hold each of said paragraphs of complaint to be good.

[2] Appellants next say that-

“An action to quiet title is an action to remove unfounded claims, and not to establish title, while the plaintiff's complaint is, in fact, an attempt to establish a title.”

In the case of Wehrman v. Conklin, 155 U. S. 314, 15 S. Ct. 129, 39 L. Ed. 167, the court had under consideration a statute of the state of Iowa, very similar to our own, and in speaking of the remedy given thereby the court said:

“It will be observed that this statute enlarges the jurisdiction of courts of equity in the following particulars: *** (2) It dispenses with the necessity of his title having been previously established at law. (3) The bill may be filed by a party having an equitable as well as a legal title”-citing the cases of Grissom v. Moore, and Stanley v. Holliday, supra, as authority for the propositions announced.

[3][4] It is next urged that the facts pleaded in the second paragraph of complaint do not show that the appellee was the equitable owner of the lands described in said complaint.

It is fundamental that when a party undertakes to set out and plead the specific facts upon which he relies as supporting his claim to any certain right or title, the facts so specifically pleaded will control all general averments, and the pleading will be tested according to its specific averments of facts. The question, therefore, now arises: Do the facts averred in the second paragraph of complaint show that, at the time it was filed, the appellee was the equitable owner of the real estate involved herein?

It is the appellants' contention, as set forth in their brief herein, that-

“A written instrument promising to convey real estate gives the holder a mere equitable right, and not title to the real estate.”

This contention, strictly speaking, is true. But where a contract, such as the one involved in this case, has been fully performed on the one hand, by the vendee, he thereby becomes the equitable owner of the said property so agreed to be conveyed, and the former owner thereafter holds the legal title in trust for such other party. As was said in Jordan v. Johnson, 50 Ind. App. 213, 98 N. E. 143:

“Where an executory contract has been made for the sale of land, equity looks on the vendee as the owner,...