Patterson v. Gary Land Co.

• Decision Date: 02 February 1934
• Docket Number: No. 14368.,14368.
• Citation: 188 N.E. 685,101 Ind.App. 644
• Court: Indiana Appellate Court
• Parties: PATTERSON et al. v. GARY LAND CO. et al.

101 Ind.App. 644

188 N.E. 685

PATTERSON et al.

v.GARY LAND CO. et al.

No. 14368.

Appellate Court of Indiana, in Banc.

Feb. 2, 1934.

Appeal from Porter Circuit Court; Albert B. Chipman, Special Judge.

Action wherein the Gary Land Company filed a cross-complaint and later filed various amended and supplemental pleadings against William P. Patterson and others. From a judgment that certain defendants to the cross-complaint of the Gary Land Company were owners of the real estate in controversy, but that the cross-complainant had a lien thereon for delinquent taxes paid by it, William P. Patterson and others appeal, and the cross-complainant assigns cross-errors.

Affirmed.

Superseding opinion 186 N. E. 358.

Darrow, Rowley & Shields, of La Porte, Harry Long and John Lyddick, both of Gary, Arthur L. Roule, of La Porte, E. G. Ballard, of Chicago, Ill., and Wm. R. Forney and Pickens, Davidson, Gause, Gilliom & Pickens, all of Indianapolis, for appellant.

Pattee & McMahan, of Crown Point, Knapp, Beye, Allen, Cochran & Cushing, of Chicago, Ill., and Crumpocker & Friedrich, of Hammond, for appellees.

WOOD, Chief Judge.

[1] The appellants have filed a petition for rehearing in this cause. In our opinion of June 29, 1933, we held that the special precipe to the clerk of the Porter circuit court was not sufficient to authorize that official to include in the transcript and certify as a part thereof on appeal to this court the second amended supplemental cross-complaint of the appellee Gary Land Company, and because of its absence from the record could not consider this appeal on its merits, and affirmed the judgment of the lower court. We have again reviewed the authorities cited to this point by both the appellants and appellee, as well as other authorities, including the case of Smith v. Switzer (1933) 186 N. E. 764, just recently decided by our Supreme Court, and conclude that the pleading in question is properly in the record. The petition for rehearing is therefore granted.

[2] The appellee Gary Land Company contends that the appellants did not save exceptions to the conclusions of law at the time they were filed, and that therefore no question is presented for our consideration. This contention is without merit. The record shows that upon January 7, 1931, the court signed and filed its conclusions of law, after which on the same day some of the cross-defendants to the cross-complaint of appellee Gary Land Company dismissed certain pleadings theretofore filed by them. Then, upon the same day, and immediately following the entry of dismissal of these pleadings, is the following entry: “The court having had this cause under advisement, now signs and files its conclusions of law from one to eight both inclusive herein as follows.” Then follow the conclusions of law. Immediately thereafter and on the same day the record shows that the appellants William P. Patterson, Clarence V. Shields, Earl Rowley, Lemuel Darrow, and Everett G. Ballard excepted separately and severally to certain designated conclusions of law. This was sufficient to comply with the requirements of our Code.

Appellee Gary Land Company next contends that this cause should be affirmed because of appellants' failure to comply with the rules of this court in the preparation of their brief. This contention is likewise without merit. Appellants' briefs are prepared in compliance with the rules of this court.

This action was originally commenced June 6, 1920, by the appellee Bertha A. Manlove as a suit to partition real estate. One Frank B. Pattee, to whose interest the appellee Gary Land Company became successor, by conveyance on August 31, 1929, was made one of the parties defendant to the action, and on April 29, 1921, filed a cross-complaint in three paragraphs. Bertha A. Manlove dismissed her complaint for partition April 21, 1930.

The cause was tried upon issues tendered by the amended cross-complaint, together with supplemental cross-complaints filed by the appellee Gary Land Company, answers filed thereto by the appellants and the coappellees of the Gary Land Company, and a reply by the Gary Land Company to the paragraphs of answer alleging affirmative matter; also upon issues tendered by the cross-complaint of the appellant William P. Patterson and answer in general denial filed thereto by the appellee Gary Land Company.

These pleadings are long and involved. No question as to their sufficiency is presented by the record. Inasmuch as the cause was tried to the court without a jury, who upon request of the appellee Gary Land Company made and filed a special finding of facts and stated conclusions of law thereon, we do not think it necessary to set out the pleadings or their substance. It is sufficient to state that the appellee Gary Land Company sought to quiet its title to certain real estate, basing its right to maintain such action upon several tax deeds issued to its immediate grantor, Frank B. Pattee, and, in the event such deeds should not be sufficient to vest title to the real estate in it, that a lien be declared thereon in its favor for the taxes thus paid, including penalties, interest, and costs as provided by law. This complaint was answered by general denial and three affirmative paragraphs of answer. The affirmative paragraphs alleged facts upon the theory of estoppel, because of an agreement existing between the cross-defendants and Frank B. Pattee; invalidity of the tax deeds to convey title to or a lien upon the real estate, because of irregularities attending the various tax sales and issuing of the tax deeds; and the four-year statute of limitation because of failure to issue the tax deeds within four years from date of the tax sale. To these affirmative paragraphs of answer the Gary Land Company filed a reply in general denial and one affirmative paragraph of reply. The affirmative paragraph rested upon the theory of laches on behalf of the cross-defendants. The appellant William P. Patterson, by his cross-complaint, sought to quiet his title to a portion of the tract of real estate involved, as against the appellee Gary Land Company, basing his right upon a title alleged to be derived from the owner of the entire tract of real estate. This pleading was answered by a general denial.

There was no motion for a new trial filed. The evidence is not in the record.

The special finding of facts briefly summarized discloses:

That previous to 1908 Winchester W. Hall and Rosa M. B. Hitt claimed to be the record owners, and were named as owners on the assessor's books, tax duplicates, and delinquent land and lot records of Lake county, Ind., of 88.76 acres of land, described as all that part of fractional section 31, township 37 north, range 7 west, lying north and west of lot 1 in said section, being all of the land lying south of Lake Michigan, north and west of the Grand Calumet river, and north of what is known as the Indian boundary line. Its location can perhaps be better understood, by explaining that the land in question is a rather narrow strip, located upon the south shore of Lake Michigan, extending approximately one mile in length from the Grand Calumet river on the east to the east boundary line of the property of the United States Steel Corporation on the west, and varying in width north and south from Lake Michigan, 650 to 1,200 feet, to said Indian boundary line on the south. The surface of the land is and always has been composed of sand, inclined to drift and shift with the wind; very little top soil or vegetation covers the surface; it has never produced crops of any kind, nor has it been farmed; a few small poplar trees and brush appear over the tract; this condition has prevailed as long as men 40 or 50 years of age can remember.

A beach from fifty to one hundred feet in width, bordering the lake, extends along the entire north side; back of this beach are barren sand hills. There are no fences on the land, and none has been erected in the last fifty years, except a fence on the east line, erected by the Gary Park Board; a township road was constructed across the land from north to south in 1896; sidewalks were constructed on each side of this highway a portion of the distance across the land, but by whom does not appear; there are no other substantial improvements.

The city of Gary was founded in 1906. Since its organization it has had a marked and continuous growth, until at the time of the trial of this cause its population was 100,000. In 1920 the east boundary line of the city of Gary was extended so this land is now located within the city limits. In 1912 the value of the land did not exceed $700 per acre; the value at the time of the trial of this cause was placed at from $3,500 to $5,000 per acre. Its value has been highly speculative because of the nature of the land, its location, and the fact that its title and possession have been involved in litigation for many years. In 1908, Drusilla Carr, claiming to be its owner by reason of adverse possession under color of title, brought suit against Winchester W. Hall and Rosa M. B. Hitt to quiet her title thereto. This litigation was waged continuously between the parties in one form or another, until April 9, 1929, when our Supreme Court rendered a decision finally quieting title in the land in Drusilla Carr. Hitt v. Carr, 201 Ind. 17, 162 N. E. 409. Neither the appellee Gary Land Company nor Frank B. Pattee, its grantor, were ever parties in any capacity to any of this litigation. Prior to August 17, 1916, Drusilla Carr conveyed undivided interests in the land to the appellees Daniel E. Kelly, Henry Warrum, and Bertha A. Manlove, also to the appellant Everett G. Ballard and one Albert C. Carver, who on January 27, 1928, conveyed his interest in the land to the appellant William P. Patterson. Previous to 1924, Drusilla Carr conveyed undivided portions of the land to some of the cross-defendants to the cross-complaint of appellee Gary Land Company,...