Piel v. Dewitt

• Decision Date: 21 July 1976
• Docket Number: No. 2--1274A303,2--1274A303
• Parties: William PIEL and Donald Piel, Appellants-Defendants, v. Nettie DEWITT et al., Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 48

351 N.E.2d 48

170 Ind.App. 63

William PIEL and Donald Piel, Appellants-Defendants, v. Nettie DEWITT et al., Appellees-Plaintiffs.

No. 2--1274A303.

Court of Appeals of Indiana, Second District.

July 21, 1976.

Joe Heaton, Tipton, for appellants-defendants

Daniel J. Harrigan & Bayliff, Harrigan, Cord & Maugans, Kokomo, Wilson Wheatley, Tipton, for appellees-plaintiffs.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendants-appellants William Piel and Donald Piel appeal from a trial court judgment declaring the plaintiffs-appellees DeWitt, Niemann, et al. owners of a one-half undivided interest in eighty acres of real estate and from the trial court's order in partition for the sale of this real estate, asserting that (1) defendants-appellants (Piel) hold title to the entire eighty acres by adverse possession, (2) the action of plaintiffs-appellees (DeWitt, Niemann, et al.) is barred by laches and the statute of limitations governing partition actions, and (3) the trial court abused its discretion in refusing to grant defendants-appellants leave to amend their answer pursuant to Ind. Rules of procedure, Trial Rule 15.

We affirm.

FACTS:

The essential facts have been stipulated or are undisputed:

In 1931, Charles Niemann died the owner of eighty acres of real estate located in Tipton County, Indiana. He devised a life estate on the land to his second wife, Clara, and the remainder interest in fee simple to their son, Carl Niemann. The decedent was also survived by two children from his first marriage, Nettie DeWitt and Henry C. Niemann.

In 1945, Carl Niemann, a minor, died intestate survived only by his mother, Clara Niemann, his half-sister, Nettie DeWitt, and his half-brother, Henry C. Niemann, as his sole heirs at law. Early in 1946, Clara requested an administrator be appointed for her deceased son's estate. In her petition for appointment, Clara listed herself, Nettie DeWitt, and Henry C. Niemann as the only known heirs of the decedent. In accordance with the laws of intestate succession in effect at that time, title to an undivided one-half of the eighty acre tract then vested in Clara and an undivided one-fourth each passed to Nettie and Henry subject to Clara's life estate. ¹

Clara was in possession of the entire eighty acre tract from the death of her husband Charles in 1931 until 1962.

At that time, 1962, Clara executed a warranty deed to her brother, William Piel, in which she purported to convey ownership to the entire eighty acres in exchange for 'one dollar and other valuable consideration.' Along with the deed, Clara recorded an 'affidavit of transfer' which stated she was the sole heir of her deceased son Carl and owner in fee of the entire eighty acre tract. William Piel took possession of the land immediately after the conveyance to him in 1962 and remained a tax paying occupant thereafter.

There was no evidence presented indicating that the plaintiffs-appellees claiming an undivided one-half interest as remaindermen had actual notice of Clara's conveyance to her brother Piel.

In 1966, Henry C. Niemann died testate leaving his one-fourth remainder interest in equal shares to his wife Elizabeth C. Niemann, and to their two sons George C. Niemann and Paul Edward Niemann.

The life tenant, Clara Niemann, died January 20, 1973.

On February 23, 1973, Nettie DeWitt and the three heirs of Henry C. Niemann, along with their spouses, joined as plaintiffs in a complaint against the Piels for partition praying that they be adjudged fee simple owners of one-half the real estate.

After stipulating the relevant facts and agreeing upon the admissibility of certain documentary exhibits, the parties submitted the cause to the trial court, which then entered judgment on May 16, 1974 finding William Piel to be owner in fee simple of an undivided one-half interest in the real estate; plaintiff Nettie DeWitt was adjudged an owner of a one-fourth interest, and the three devisees of Henry Niemann were each declared owners of a one-twelfth interest.

For ease of reference defendants-appellants William Piel and Donald Piel will be referred to as the Claimant, (no interest is claimed by Donald); plaintiff-appellee Nettie DeWitt, daughter of decedent Charles Niemann by his first wife, and Elizabeth Niemann, George C. Niemann, and Paul Edward Niemann, as heirs of Henry Niemann (deceased son of Charles Niemann), and their respective spouses will be collectively referred to as the Remaindermen;

Clara Niemann will sometimes be referred to as the Life Tenant.

ISSUES

Two issues are presented for disposition: ²

ISSUE I: Did the Claimant (Piel) gain title to the entire eighty acres by adverse possession?

ISSUE II: Was the suit for partition filed by the Remaindermen in February of 1973 barred by laches and the statute of limitations governing partition actions?

As to ISSUE ONE, the Claimant maintains the statute of limitations began to run against the Remaindermen (and their predecessors in title) in 1962 when the Life Tenant (Clara) conveyed the land to him; the recording of her deed, accompanied by her affidavit asserting sole ownership, put them on notice that his possession of the premises was adverse to their interests. Thus the Remaindermen failed to bring suit within the ten years limitation period (IC 1971, 34--1--2--2 (Burns Code Ed.)) and title vested in the Claimant by adverse possession.

The Remaindermen's reply § that the statute of limitations does not begin to run against a vested remainderman until the intervening life estate terminates. Absent actual notice, the life tenant cannot possess the land adverse to the remainderman. The Remaindermen lacked actual notice of the Life Tenant's 1962 conveyance and therefore were not bound to assert their claim until her death in 1973, which they did approximately thirty days after she died.

As to ISSUE TWO, the Claimant (Piel) argues a right to partition accrued in the Remaindermen's favor in 1945 when Carl Niemann died, and a suit commenced eighteen years alter is barred by both the statute of limitations and the doctrine of laches.

The Remaindermen deny they had a possessory right in 1945 and were justified in awaiting the termination of Clara's life estate before commencing this action, and therefore have diligently asserted their known rights.

DECISION

ISSUE ONE:

CONCLUSION:

It is our opinion the Claimant did not acquire title to the real estate, or any part of it, by adverse possession because the statute of limitations had not expired at the time the Remaindermen commenced this action.

The Claimant's dilemma is that when his sister Clara conveyed the real estate to him in 1962 she only owned an undivided one-half interest and was a life tenant as to the other one-half, title to which had already vested in the Remaindermen subject to her life estate. ³ Unless he, the Claimant, can demonstrate that he has acquired title to the entire tract--and not just her life estate and her undivided one-half interest--by adverse possession for the ten year statutory period, (IC 1971, 34--1--2--2 (Burns Code Ed.)) ⁴ the trial court's judgment To acquire title by adverse possession, the Claimant's possession must be: (1) actual, (2) visible, (3) open, (4) notorious, (5) exclusive, (6) under a claim of ownership, (7) hostile, and (8) continuous for at least the statutory period of limitation. See: IC 1971, 32--1--20--1 (Burns Code Ed.); Triplett v. Triplett (1963), 135 Ind.App. 302, 193 N.E.2d 662; Milhon v. Brown (1957), 127 Ind.App. 694, 143 N.E.2d 573, rehearing denied, 127 Ind.App. 694, 145 N.E.2d 307; Cooper v. Tarpley (1942), 112 Ind.App. 1, 41 N.E.2d 640.

must be affirmed. If the Remaindermen were given sufficient notice of his adverse possession prior to the death of the Life Tenant (Clara) in 1973, then the Claimant could have acquired title by adverse possession pursuant to IC 1971, 34--1--2--2. Unfortunately, the Claimant cannot successfully carry this burden.

The general rule in Indiana is that the statute of limitations does not run against a remainderman until the termination of the intervening life estate (which in this case was 1973). Chambers v. Chambers (1894), 139 Ind. 111, 38 N.E. 334; Haskett v. Maxey (1892), 134 Ind. 182, 33 N.E. 358; Luntz v. Greve (1885), 102 Ind. 173, 26 N.E. 128; Nicholson v. Caress (1877), 59 Ind. 39.

IC 1971, 34--1--2--2 (Burns Code Ed.) bars actions to recover the possession of real estate not commenced within ten years of accruement. However, a remainderman has no right to possess the land until the life estate ends. Without an immediate right of possession, a remainderman is incapable of maintaining an ejectment action to recover the possession of real estate. See: IC 1971, 32--6--1.5--1 (Burns Supp.1975). Thus, the rationale for the rule emerges from the unfairness inherent in impressing a limitation period for the recovery of real estate upon a person who lacks a remedy for its recovery. ⁵

Although the life tenant's death provides the customary means for ending the life estate and conferring possessory rights upon the remainderman, the life estate may prematurely terminate if the life tenant disavows his current estate and claims a larger one instead. If the remainderman is properly notified, the life tenant's repudiation will extinguish the life estate and accelerate the remainderman's right to possession. See: 3 Am.Jur.2d Adverse Possession, § 226 (1962); ⁶ 112 A.L.R.2d 1042, at 1048 (1938). The aquisition of a possessory The Claimant's position is that the Life Tenant repudiated her life tenancy in 1962 when she recorded a deed and affidavit claiming sole ownership in all the real estate and conveying title to him. (At that time she owned a life estate in an undivided one-half of the eighty acres while holding title to the other half in fee simple). ⁷ By virtue of such repudiation and his subsequent possession, Claimant maintains sufficient notice was given in 1962 to start the statute of...