Quail v. Banta
| Decision Date | 24 May 1943 |
| Docket Number | 16937. |
| Citation | 48 N.E.2d 841,113 Ind.App. 664 |
| Parties | QUAIL et al. v. BANTA et al. |
| Court | Indiana Appellate Court |
Arthur D. Cutler and Cooper & Cooper, all of Madison, for appellants.
J F. Williamson and Frank E. Blackman, both of Louisville, Ky and Paul F. Dowell, of Madison, for appellees.
Appellants brought this action in the Jefferson Circuit Court against appellees, Foster M. Banta and Chester H. Banta, to declare a trust in certain real estate and to declare the appellee Foster M. Banta the trustee of said real estate for the heirs of James W. Banta.
Subsequent to the filing of the action, appellee Federal Farm Mortgage Corporation filed its petition to intervene which was granted.
The complaint was in one paragraph and alleged, in substance that the appellants and appellees Banta and Banta were the children and sole heirs at law of James W. Banta who died intestate in Jefferson County, Indiana, on March 15, 1938 that on the 27th day of April, 1935, said James W. Banta, a widower, was the owner in fee simple of, and resided on, a certain tract of land containing 83 1/2 acres in said County and State; that on said date said James W. Banta, who was then 82 years of age and in poor health, was in debt to various parties and was desirous of securing a loan on said real estate with which to pay his said debts; that because of his advanced age and poor health he was informed and believed that he would be unable to secure a loan on his said farm, but that if he would convey said land to his son, Foster M. Banta, appellee here, who was about 50 years of age and resided in an adjoining county, his said son could apply for and probably secure a loan on said farm and thus secure the money needed by said James W. Banta for the purposes hereinbefore mentioned; that acting upon such advice, information and belief, said James W. Banta did then and there execute and deliver to said Foster M. Banta a warranty deed for said farm, which was duly recorded in the records of Jefferson County, with the understanding and agreement then and there made that said land was being so deeded to said son as trustee for his said father for the sole purpose of securing a loan as aforesaid, pursuant to which conveyance and agreement said son proceeded to apply for and obtained a loan on said land in the sum of $1,300 from the Land Bank Commissioner of Louisville, Ky., as security for which said Foster M. Banta and Anna O. Banta, his wife, executed a mortgage to said Land Bank Commissioner on said 83 1/2 acres, said mortgage being duly recorded on July 20, 1935, in the Mortgage Records of the County.
The complaint further alleged that the money derived from said loan was used in paying the indebtedness of said James W. Banta and in other ways for his own uses and needs; that said conveyance of said real estate was made by said James W. Banta to said son without any consideration whatever on the part of said grantee and for the sole purpose of securing said loan, and said grantee paid no money at that time nor since as consideration for said real estate; that by reason of the premises a trust in said real estate has resulted in favor of the heirs of said James W. Banta, and said Foster M. Banta holds said real estate in trust and as trustee for appellants and the other heirs of said James W. Banta or for his estate, and prays that a trust be declared and adjudged by the court in favor of these appellants and the other heirs of said James W. Banta, deceased, and that said Foster M. Banta holds said real estate in trust as trustee for said heirs and for the estate; and that said trust be declared terminated and the said trustee be required to execute a deed of conveyance of said real estate to the proper party or parties, or that the Court appoint a Commissioner to make such conveyance.
To this complaint appellees Banta and Banta filed their answer in general denial. The Federal Farm Mortgage Corporation filed its answer in two paragraphs, the first in general denial and the second averring, in substance, that the mortgage was a valid first lien and that it contained a covenant by the mortgagors to pay all expenses incurred by the mortgagee in securing abstracts of title, etc., and to pay all court costs, expenses and attorneys' fees, and also averring that the Corporation had been compelled to employ attorneys to enforce its rights under the mortgage and is entitled to recover said fees, averring that $100 is a reasonable fee for such attorneys for the services rendered, and praying that said mortgage be adjudged to constitute a first lien, and if the mortgaged property be sold it be sold subject to its mortgage lien, and for all costs herein, including attorneys' fees. The mortgage and note which it secures are incorporated in said answer.
The appellants were ruled to answer the second paragraph of appellee Federal Farm Mortgage Corporation, and subsequently filed their motion to dismiss and strike from the files said answer. Thereafter, appellants withdrew their action to strike out the answer of said appellee. No reply to said answer was filed by appellants. The cause was tried by the court and the court found for appellee Foster M. Banta, and that the property in question was received and acquired by him in fee simple for his own proper use and behalf, and not as trustee, and that said property was not burdened by any trust or trust agreement in favor of James W. Banta or any other person whatsoever. The court further found that the mortgage of the Federal Farm Mortgage Corporation was a valid mortgage and that the title of appellee Foster M. Banta was subject to the lien of said mortgage, and made an order allowing the attorneys of appellee Federal Farm Mortgage Corporation the sum of $25.
Motion for a new trial was seasonably filed, which was overruled by the court. The overruling of the motion for a new trial is the only error assigned here.
The brief of appellants in this court does not present or discuss in any manner Specification (1) in the motion for a new trial, and is therefore deemed waived. Rule 2-17(f), Rules of the Supreme and Appellate Courts.
The second specification of appellants' motion for a new trial is: Error in the assessment of the amount of recovery, in this, the amount is too large. In support of this specification they assert there is no evidence in the record as to what was a reasonable fee for the attorneys of appellee, Federal Farm Mortgage Corporation. They rely on the cases of Simons v. Beaver, 1896, 16 Ind.App. 492, 43 N.E. 972, 45 N.E. 673; Lake Erie & Western R. Co. v. Juday, 1898, 19 Ind.App. 436, 457, 49 N.E. 843; Anderson Glass Co. v. Brakeman, 1898, 20 Ind.App. 226, 236, 47 N.E. 937; Warsaw v. Dunlap, 1887, 112 Ind. 576, 11 N.E. 623, 14 N.E. 568; Indianapolis & St. L. R. Co. v. Watson, 1887, 114 Ind. 20, 35, 14 N.E. 721, 15 N.E. 824, 5 Am.St.Rep., 578; Flying Squadron Foundation v. Crippen, 1930, 201 Ind. 482, 508, 169 N.E. 843, which hold that where the evidence wholly fails to sustain the verdict or finding on a material issue, or where there is no legal evidence to support a verdict or finding upon a material question, then this court will reverse the judgment on the evidence. There can be no question regarding this principle.
In Kitch v. Schoenell et al., 1881, 80 Ind. 74, our Supreme Court, in passing on this point, said: "but where, * * * there is no evidence * * * upon the real question in issue, it is as much the duty of this court to reverse the judgment below and remand the cause for a new trial, as it would be for any error of law occurring at the trial and excepted to". (Our italics.) In the instant case the real question in issue is whether or not appellee Foster M. Banta held the real estate involved as trustee for James W. Banta. If any question was presented by the second paragraph of answer it was merely incidental.
The record discloses that subsequent to the filing of the answer of appellee Federal Farm Mortgage Corporation, the appellants were ordered by the trial court to reply to this second paragraph of answer, and in compliance with this rule filed their motion to strike said second paragraph from the record for the following reasons: 1. It is a sham pleading. 2. It is frivolous. 3. It is wholly surplusage. 4. Its contents are wholly irrelevant. 5. Its contents are wholly outside the issues in this cause. The record further shows that before the trial court ruled on said motion to strike out, appellants withdrew said motion, and did not reply to said answer. Appellee Federal Farm Mortgage Corporation contends that the averments of its second paragraph of answer not being denied or controverted, must, under our statute, be treated as an established fact. Section 2-1055, Burns 1933 provides: "Every material allegation of new matter in the answer not controverted by a reply, shall, for the purpose...
To continue reading
Request your trial