Paulus v. Latta

• Decision Date: 11 January 1884
• Docket Number: 9024
• Citation: 93 Ind. 34
• Parties: Paulus et al. v. Latta
• Court: Indiana Supreme Court

93 Ind. 34

Paulus et al. v. Latta

No. 9024

Supreme Court of Indiana

January 11, 1884

From the Rush Circuit Court.

G. C Clark, G. B. Sleeth, W. W. Herod, F. Winter and J. W. Study for appellants.

W. A Cullen, B. L. Smith and C. Cambern, for appellee.

OPINION

Bicknell, C. C.

This was a suit by the appellee, a married woman, to charge her husband, as her trustee, and to correct a misdescription of land, and to quiet her title thereto against a mortgage made by her trustee to secure his own debt.

Certain judgment creditors of the husband were made codefendants on their own petition, and they filed answers.

Daniel Paulus, the mortgagee, demurred to the complaint, for want of facts, etc. His demurrer was overruled.

The husband and all the adult defendants, concerned in the misdescription only, were defaulted.

There was a trial by jury upon complaint, answers, replies, cross complaint of Paulus, and an answer thereto. The cross complaint of Paulus demanded the foreclosure of his mortgage. The appellee's answer thereto was a general denial, and a denial under oath of the execution of the mortgage.

The jury returned a verdict against all the defendants, with a finding in favor of Paulus, against the husband, for his mortgage debt.

The separate motion of Paulus for a new trial, and the joint motion of the judgment creditors for a new trial were overruled. Judgment was rendered on the verdict that the misdescription be corrected and the appellee's title quieted, and that the judgments of the husband's creditors were not liens on the plaintiff's land, and foreclosing the mortgage of Paulus as to all the land covered thereby except the land held in trust, and awarding costs in favor of the appellee against all the defendants.

The defendants Paulus and the judgment creditors separately and jointly "objected and excepted to said verdict, judgment and decree," and they jointly appealed.

Paulus assigned as errors:

1. The complaint does not, as against him, state facts sufficient to constitute a cause of action.

2. Error in overruling his demurrer to the complaint.

3. Error in overruling his motion for a new trial.

The other appellants assign as error:

Overruling their motion for a new trial.

The complaint states, in substance, that the appellee's father agreed with her that if she would remove from Kentucky to Rush county, Indiana, he would convey to her fifty-eight acres of land in said county; that she did so remove and was put in possession of said land by her father, and continued to live thereon with her husband and family until 1865; that in 1856, while she was thus in possession, her father, intending to comply with his said contract, but in contravention thereof, and without her knowledge or consent, made a deed for said land to her husband, who, at all times, recognized her as the owner; that believing herself to be such owner she continued in possession as owner, and made permanent improvements of the value of $ 2,000; that in 1865 her husband proposed to her to sell said land, and with its proceeds buy part of her father's old homestead, and take the title thereto in her own name; that she agreed thereto, sold said fifty-eight acres, and, through her husband, who acted as her agent, bought from one Stevens, the undivided two-thirds of said homestead, to wit, eighty acres; that all the purchase-money of said eighty acres was paid by her; that her husband, without her knowledge or consent and wrongfully, procured the deed therefor to be made to him and put it on record; that the other one-third of said homestead was owned by Augustus Tevis, who had made with Stevens an oral partition, under which he took that part of the homestead lying north of a certain road, and Stevens took his two-thirds on the south of said road; that immediately after said purchase, in 1865, the appellee, supposing herself to be the owner of said eighty acres on the south of said road, moved on to the same and has ever since resided thereon with her husband and family; that in January, 1871, her husband and the defendant Paulus applied to her to execute a mortgage on said eighty acres to said Paulus for $ 1,600, which she refused to do; that after such refusal her husband mortgaged said land to Paulus for $ 1,600, to secure his own note for that amount; that Paulus took said mortgage with full knowledge that she had not executed it, but had refused so to do; that the mortgage purported to be signed and acknowledged by her, but that she never signed it, nor authorized anybody to sign it for her; that she never acknowledged it, but expressly refused to sign or acknowledge it, as said Paulus well knew; that she never knew her husband had taken the title to said eighty acres in his own name until 1875.

The complaint contains proper allegations as to the misdescription, and prays that appellee be declared the sole owner of said eighty acres, and that said mortgage be declared void as to her, and be entered satisfied of record as to said eighty acres.

The removal from Kentucky to Indiana was a sufficient consideration for her father's contract to convey to her the land. Hardesty v. Smith, 3 Ind. 39; Greene v. Bartholomew, 34 Ind. 235.

There was a sufficient part performance of the contract to take it out of the statute of frauds. Lafollett v. Kyle, 51 Ind. 446; Haddon v. Haddon, 42 Ind. 378; Law v. Henry, 39 Ind. 414.

The consideration for the fifty-eight acres having been paid by the wife, and the husband having taken the deed therefor in his own name without her consent, he became her trustee therefor. 1 R. S. 1876, p. 915, sections 6 and 8; Malady v. McEnary, 30 Ind. 273; 1 Perry Trusts, section 126; Watkins v. Jones, 28 Ind. 12. And under the allegations of the complaint, the appellee having paid the entire consideration for the eighty acres, and the deed therefor having been taken by the husband in his own name, without her knowledge or consent, he became her trustee for the eighty acres. Watkins v. Jones, supra; Davis v. Davis, 43 Ind. 561. His mortgage of the trust property to Paulus was fraudulent; if the complaint had averred that Paulus, when he advanced his money and took his mortgage, had notice of the secret equity of the appellee, it would have stated a good cause of action against Paulus, but there is no such averment, the complaint states only that the appellee refused to sign the mortgage and did not sign or acknowledge it, and that Paulus, when he took the mortgage, knew she had refused to sign it. The complaint shows that Paulus was a purchaser for a valuable consideration; such a trust can not be enforced against him, unless he had notice of it. R. S. 1881, section 2970; Rooker v. Rooker, 75 Ind. 571; Milner v. Hyland, 77 Ind. 458. The mere fact that the wife was living on the land with her husband and family would not charge Paulus with notice. Westerfield v. Kimmer, 82 Ind. 365.

The court therefore erred in overruling the demurrer of Paulus to the complaint.

The appellee suggests that the complaint contains a good cause of action against Paulus to remove the cloud upon her inchoate interest as the wife of the defendant Latta. But such inchoate interest is not a present estate, it cannot be conveyed by itself. McCormick v. Hunter, 50 Ind. 186. It gives no right of entry. Strong v Bragg, 7 Blackf. 62. It is not the subject of an action; it constitutes no diminution of the husband's present estate; he may convey his entire estate without her, and the purchaser will hold it subject only to be divested of one-third of it on certain contingencies. May v. Fletcher, 40 Ind. 575. And her joining in the conveyance of his estate would simply bar the contingencies upon which she might have acquired a vested interest. May v. Fletcher, supra; Hudson v. Evans, 81 Ind. 596; 1 Cruise Dig. 158; 4 Kent Com. 61. In Taylor v. Stockwell, 66 Ind. 505, and Baker v. McCune, 82 Ind....