Rooker v. Fid. Trust Co.

• Decision Date: 22 June 1921
• Docket Number: No. 23598.,23598.
• Citation: 191 Ind. 141,131 N.E. 769
• Parties: ROOKER et al. v. FIDELITY TRUST CO.
• Court: Indiana Supreme Court

191 Ind. 141

131 N.E. 769

ROOKER et al.

v.FIDELITY TRUST CO.

No. 23598.^*

Supreme Court of Indiana.

June 22, 1921.

Appeal from Circuit Court, Hamilton County; Earl Sample, Special Judge.

Suit by Dora E. Rooker and others against the Fidelity Trust Company. Defendant filed cross-complaint. From judgment for defendant, plaintiffs appeal. Judgment affirmed.Wm. V. Rooker, of Indianapolis, for appellants.

Chas. E. Cox and Henry Seyfried, both of Indianapolis, for appellee.

WILLOUGHBY, J.

This case is a resumption of proceedings under the mandate of this court in Rooker v. Fidelity Trust Co., 185 Ind. 172, 109 N. E. 766. The appellants, as settlors of a trust in lands, sued appellee, who was the trustee, alleging a violation and repudiation of the trust and demanding damages, an accounting, that the appellee trustee be removed, and that a receiver be appointed for the trust estate to administer it under the terms of the trust agreement. Appellee on its part filed a cross-complaint in which it set up the same trust and its duties under it as trustee, its performance of all its duties save the sale of the trust estate, its reason for not making such sale, its purpose to carry out the sale, and its hindrance by appellants' interference and claim of title. It asked an accounting that its title as trustee be quieted, that appellants be enjoined, and that it be decreed to make sale pursuant to the trust agreement and distribution of proceeds accordingly.

Appellants' complaint was answered by appellee trustee by general denial. Issue was formed on the cross-complaint of appellee trust company by answer of general denial and by special partial answers; the issues on the latter being made by replies in general denial. On these issues the cause was submitted to the court for trial, and the following special finding of facts and conclusions of law were made and stated by the court:

The court finds the facts to be:

First. That on and prior to the 11th day of October, 1909, the plaintiff Dora E. Rooker was the owner in fee simple of certain real estate situate in Hamilton county, Ind.

Second. That on and prior to the 11th day of October, 1909, the plaintiffs William V. Rooker and Dora E. Rooker, husband and wife, were the owners in fee simple, as tenants by entireties, of certain real estate situated in Marion county, Ind.

Third. That on the said 11th day of October, 1909, said plaintiff Dora E. Rooker and William V. Rooker, her husband, executed and delivered to said cross-complainant, Fidelity Trust Company, as trustee, their warranty deed for the lands in Hamilton county:

“*** To have and to hold said real estate, however, in trust for the use and benefit of said Dora E. Rooker and to protect and discharge the obligations arising out of claims and liens or the right of liens by reason of improvements made on the above-described real estate.

Said Fidelity Trust Company of Indianapolis, Ind., as aforesaid, to sell and convey said lands or any part of them at such prices and upon such terms as may be from time to time dictated in writing by said Dora E. Rooker, to execute the proper trustee's deed or deeds conveying the title thereto in fee simple to the purchaser, it being hereby understood and agreed that any deed so executed by said Fidelity Trust Company of Indianapolis shall convey a good and indefeasible title in fee simple to such purchaser or purchasers as fully as this grantor could herself do, and any such purchaser or purchasers shall in no wise be responsible for the application of the proceeds arising from such sale in the hands of the said Fidelity Trust Company of Indianapolis, trustee.

And said Fidelity Trust Company of Indianapolis, as such trustee, shall have full power and authority to make contracts in writing for the sale of the foregoing real estate, or any part or all of said real estate, and convey same free and clear of any incumbrance or convey the same subject to any existing incumbrances, and to do any and all acts and to execute any and all papers which may be necessary to protect the interests of this grantor, the mortgage, and other lienholders in and to said real estate and to conserve the trust hereby created.

And in the event any such liens or charge against said real estate be paid by the Fidelity Trust Company, trustee, the said Fidelity Trust Company, trustee, shall be subrogated to all the rights of such original lienholders and the same shall be enforceable by it and collectible with interest at the rate of 6 per cent. per annum, to be credited semiannually as a debit and charge against said real estate.

This conveyance is made subject to the taxes for the years 1908 and 1909 and subject also to a certain mortgage executed to the American Central Life Insurance Company, by this grantor and William V. Rooker, her husband, on November 19, 1908, said mortgage secured the payment of certain principal note of said grantor in the sum of fourteen thousand ($14,000) dollars, together with interest thereon and recorded in Mortgage Record 52, page 84, in the office of the recorder of Hamilton county, Ind.”

That said indenture by Dora E. Rooker and William V. Rooker, her husband, was received for record on the 14th day of October, 1909, and recorded in Record 97, at page 117, in the recorder's office of Hamilton county, Ind.

Fourth. That on said 11th day of October, 1909, the plaintiffs William V. Rooker and Dora E. Rooker, husband and wife, executed and delivered to said cross-complainant Fidelity Trust Company, as trustee, their warranty deed for the lands in Marion county:

“*** To have and to hold said real estate, however, in trust for the use and benefit of said grantors, William V. Rooker and Dora E. Rooker, and to protect and discharge the obligations of the trust herein with the powers and limitations as follows:

Said Fidelity Trust Company of Indianapolis, trustee as aforesaid, to sell and convey said real estate according to the terms of a certain contract of even date herewith within one (1) year after the date of these presents for a consideration fixed in said contract, and should it so happen that said real estate be not sold within said period of one (1) year, for the sum nominated in said contract, then after ninety days' notice in writing, to be given to the grantors by the trustee herein, the trustee may publicly advertise said real estate and sell the same at public or private sale at such price as it may bring, and upon the consummation of such sale as may be made by said Fidelity Trust Company of Indianapolis as such trustee to execute the proper trustee's deed conveying the title thereto in fee simple to its said purchasers, it being hereby understood and agreed that any deed so executed by said Fidelity Trust Company of Indianapolis, trustee, shall convey a good and indefeasible title in fee simple to such purchaser or purchasers as fully as these grantors could themselves do, and any such purchaser or purchasers shall in no wise be responsible for the application of the proceeds arising from such sale in the hands of the said Fidelity Trust Company of Indianapolis, trustee, but said Fidelity Trust Company is directed to apply the proceeds arising from such sale in the manner and for the purposes set out in the contract entered into between said grantors and said Fidelity Trust Company, trustee, on this date.

The said Fidelity Trust Company of Indianapolis, as such trustee, shall have full power and authority to make contracts in writing for the sale of the foregoing real estate or any part or all of said real estate and convey the same free and clear of any incumbrances or subject to any existing incumbrances, and to do any and all acts and to execute any and all papers which may be necessary to protect the interest of the grantors in and to said real estate and to conserve the trust hereby created, and it is hereby further understood and agreed that, if the said Fidelity Trust Company of Indianapolis, as trustee, shall elect to pay any lien, charge, or incumbrance existing against said real estate, the said Fidelity Trust Company of Indianapolis, trustee, shall be subrogated to all the rights, title, and interest held by the original parties thus paid, and the same shall be collectible and enforceable in its hands, together with interest thereon at the rate of 6 per cent. per annum, to be credited semiannually to said Fidelity Trust Company as a debit and charge against the grantors and the real estate above described.

This conveyance is made subject to the taxes for the years 1908 and 1909 and subject also to certain mortgage executed March 12, 1909, by the grantors, William V. Rooker and Dora E. Rooker, husband and wife, to the Indianapolis Life Insurance Company to secure the payment of one principal note of the sum of six thousand ($6,000) dollars and interest coupon notes thereon which mortgage is recorded in Mortgage Record 523, page 128, in the office of the recorder of Marion county, state of Indiana.”

That this indenture was received for record on the 14th day of October, 1909, and recorded in Record 52, page 101, in the office of the recorder of Marion county, Ind.

Fifth. That contemporaneously with the execution of the two warranty deeds executed on the 11th day of October, 1909, to said Fidelity Trust Company, trustee, and as part of the same transaction, the plaintiffs Dora E. Rooker and William V. Rooker, as first parties, and the defendant and cross-complainant, Fidelity Trust Company of Indianapolis, Ind., as second party, executed in duplicate on the 11th day of October, 1909, a memorandum or contract in writing. (This memorandum or contract in writing is set out in full in the opinion in Rooker v. Fidelity Trust Co., 185 Ind. beginning on page 173, 109 N. E. 766.)

Sixth. That since the execution of said warranty deeds and said written memorandum the plaintiff, Dora E. Rooker has continued in the possession of and farmed all the lands...