Rohrof v. Schulte

• Decision Date: 28 November 1899
• Docket Number: 18,699
• Parties: Rohrof et al. v. Schulte
• Court: Indiana Supreme Court

55 N.E. 427

154 Ind. 183

Rohrof et al. v. Schulte

No. 18,699

Supreme Court of Indiana

November 28, 1899

Rehearing Denied Feb. 15, 1900.

From the Pulaski Circuit Court.

Affirmed.

B Borders, Wm. Spangler and W. W. Borders, for appellants.

F. L Dukes, Cutting, Castle & Williams, and George Burson, for appellee.

OPINION

Jordan, J.

This action was originally instituted by the appellee on October 31, 1893, against Monigunda Rohrof, Julius Rohrof, Charles A. Brillo, and one Henry Meiger, to set aside the conveyance of 120 acres of real estate situated in Pulaski county, Indiana, and to quiet title thereto; which conveyance, it was alleged, had been obtained from appellee through the fraud of appellants.

On July 12, 1895, an amended complaint in two paragraphs was filed. Monigunda and Julius Rohrof separately demurred to each paragraph of this complaint. Their demurrers were each overruled, and they answered by a general denial and also filed a cross-complaint to quiet title to the lands in controversy. There was a trial by the court, a special finding of facts and conclusions of law thereon in favor of appellee, and, over a motion for a new trial, judgment was rendered quieting his title in and to the lands in dispute.

This is a term time appeal and is taken and prosecuted alone by Monigunda and Julius Rohrof. Errors assigned and discussed by appellants' counsel relate, (1) to the sufficiency of each of the paragraphs of the amended complaint; (2) to the sufficiency of the special finding to support the conclusions of law; (3) to the sufficiency of the evidence to sustain the facts found by the court.

The special finding clearly discloses, we think, that it rests upon and responds to the facts averred in the second paragraph of the amended complaint; consequently a correct decision may be reached upon the facts as stated in the special finding; and, therefore, we need not consider the sufficiency of the first paragraph of the complaint, as, under such circumstances, the ruling on the demurrer thereto would be harmless. Smith v. Wells Mfg. Co., 148 Ind. 333, 46 N.E. 1000; Illinois Central R. Co. v. Cheek, 152 Ind. 663, 53 N.E. 641.

As the facts disclosed by the special finding embrace substantially all of the material ones averred in the second paragraph of the complaint, it is not essential that we set out the latter in this opinion, for it is evident that, in the event it can be adjudged that the special finding sustains the court's conclusions of law thereon, the sufficiency of the second paragraph of the amended complaint, under the circumstances, must be affirmed.

The following may be said to be the facts found by the court: Appellee, plaintiff below, was the owner of the 120 acres of land described in the complaint, situated in Pulaski county, Indiana; and this land was of the value of $ 3,000. The defendant, Charles A. Brillo, was a real estate agent in the city of Chicago, Cook county, Illinois. Appellee employed him to sell or exchange the said 120 acres of land for real property situated in the city of Chicago; and he consented to effect the sale or exchange desired by appellee. A few days after accepting this employment, Brillo informed appellee that he knew a person by the name of "Henry Meiger" and that the latter had fourteen lots situated in Morgan Park, a suburb of the city of Chicago; and that Meiger would exchange these lots for appellee's Pulaski county land. A short time after making this proposition to appellee, and before January 11, 1893, he, Brillo, delivered to appellee what purported to be a map of Morgan Park, and indicated thereon the exact location of the fourteen lots proposed to be exchanged by marking with ink the part of the map or plat representing the location of the lots, which were represented on said map to be situated between 107th and 108th streets and Euclid and Blanchard avenues in the said Morgan Park. A few days thereafter, Brillo went with appellee to show him the lots offered for exchange, and pointed out to him eleven lots fronting on Euclid avenue and three lots fronting on Blanchard avenue, between 107th and 108th streets, in said Morgan Park, as being the identical fourteen lots which Meiger desired to exchange or trade for appellee's land. The lots which he pointed out or showed to the appellee were situated two blocks west of Western avenue in said Morgan Park, and were each worth $ 250 or $ 300. Appellee was not familiar or acquainted with the lots, nor with the maps or plats of that part of the city, and knew nothing in regard to them except what Brillo stated and represented to him, and he relied upon the representations of Brillo in respect to the location of these lots and believed that the latter was giving their true location. On January 11, 1893, after the above representations had been made by Brillo to appellee, the latter entered into a written contract to trade or exchange his land for fourteen lots in Grove addition to the town of Morgan Park. At the time appellee signed this contract, he believed that the lots mentioned or described therein were the same which Brillo had shown him, as previously stated. This contract was in duplicate, one of which was signed by appellee and his wife; and thereby they agreed to convey to "Henrick Meiger" the land in Pulaski county; and the other part of the contract purported to have been signed by said Meiger and his wife, and under it they agreed to convey the fourteen lots in Grove addition to Morgan Park to appellee in exchange for his land. This contract and all of the negotiations in respect to the trade or exchange of the lots for appellee's land were made and carried on by and between Brillo and appellee, Meiger at no time being present, and at no time did appellee see him. Brillo, during the transaction, represented to appellee that Meiger could not be present to take part in the negotiations, and further represented that he, Meiger, resided in Cummings or South Chicago and that he was employed at that town in a rolling-mill. After Brillo had shown appellee the lots in Morgan Park, situated as heretofore stated, and before he entered into the written contract mentioned, Brillo made frequent visits to see him, and urged him to exchange his land for the lots which he had shown him. After the execution of this contract, Brillo, at his own solicitation, was employed by appellee to examine the abstract of title to the lots described as situated in Grove addition; and thereafter he gave appellee a written opinion that Meiger's title thereto was good, subject only to a mortgage lien of $ 600 and certain tax liens. Thereafter on February 9, 1893, appellee and his wife, Emma Schulte, relying on the statements and representations so made by Brillo, and believing them to be true, executed a warranty deed conveying the Pulaski county land to said Meiger, and delivered the same to Brillo at his request and also delivered to him the aforesaid contract, and turned over to him the possession of the land in Pulaski county; and thereupon he delivered to appellee a deed, purporting to have been executed by Meiger and wife, conveying to appellee's wife the lots in Grove addition to Morgan Park, subject to a mortgage of $ 600. Appellee at the same time received from Brillo what purported to be the promissory note of Meiger to appellee for $ 600, which was in consideration of stock and other personal property owned by appellee and on the land at the time he turned the possession thereof over to Brillo. At the close of the transaction, appellee paid Brillo $ 85 as a commission for his services in effecting the exchange. At the time of the delivery of the deed of appellee and wife to Brillo, and of the delivery by the latter of Meiger's deed, Brillo represented to appellee that the lots described in Meiger's deed were the same lots which he had pointed out and shown him, as heretofore stated. These representations made by Brillo were false, and, at the time he made them, he knew they were false. From Brillo's representations, statements, and acts, appellee was induced to believe, and did believe, that the deed for the lots delivered to him conveyed the same lots in Morgan Park, situated on Blanchard and Euclid avenues between 107th and 108th streets, and which were but two blocks west of Western avenue of said Morgan Park. In truth and in fact, however, they were not the same lots; and the ones embraced in the said deed were located about three and one-half miles southwest of the lots pointed out and shown appellee by Brillo and were situated over two miles west of Western avenue of said Morgan Park, out in the open prairie; and, at the time of their exchange for appellee's land were of the value of $ 33.33, or of the total value of about $ 466; all of which Brillo well knew at the time he obtained from appellee the written contract and the deed for the land in Pulaski county.

Appellants, Rohrof and Rohrof, are husband and wife, said Monigunda being the sister of the defendant, Brillo; and, at the time the said negotiations were pending, these appellants resided at Cummings or South Chicago, Illinois, and appellant, Julius, was employed in the rolling-mills in that town. These appellants had knowledge of the negotiations that were being had between appellee and Brillo in respect to the exchange of the real estate in controversy. Before the deeds herein mentioned were executed, said Julius, in company with Brillo, went to see the land of appellee, and was introduced by Brillo to the tenant of appellee, then occupying the land, as "Mr. Meiger." It was stated that he desired to "look over the farm."

About the middle of June, 1893, following the transactions between Brillo and appellee, the latter ascertained and discovered...