Sawyer v. Kleine

• Decision Date: 07 December 1948
• Docket Number: 17787.
• Citation: 82 N.E.2d 533,118 Ind.App. 616
• Parties: SAWYER et al. v. KLEINE.
• Court: Indiana Appellate Court

82 N.E.2d 533

118 Ind.App. 616

SAWYER et al. v. KLEINE.

No. 17787.

Appellate Court of Indiana, in Banc.

December 7, 1948

Appeal from LaPorte Circuit Court; Lee L. Osborn, Judge.

Davie and Davie, of LaPorte, for appellants.

Alfred J. Link, of LaPorte, for appellee.

DRAPER Judge.

On and prior to Feb. 6, 1935, the parties to this action were husband and wife, but a divorce action was pending. On that date they entered into a written contract for the purchase of a 60 acre farm in LaPorte County from one Collins for the sum of $4400. They made a down payment by the execution of their joint notes, the balance payable monthly. The appellee (husband) took possession of the farm on March 1, 1935. In April a divorce was decreed and the appellant (wife) later remarried. After taking possession, the appellee farmed the land and made improvements thereon; made all payments on the contract; paid taxes, ditch assessments, etc. The appellant never lived on the farm or manifested any interest in it until after appellee had paid for it. She never made or offered to make any payments or any contributions toward upkeep or improvements. In 1944 the appellee received a deed from Collins in which he was the sole grantee. In 1947 he contracted to sell the farm for $9000. The recorded contract appeared in the abstract of title and this suit followed.

The appellee's complaint is in the usual short form for quieting title under Burns 1946 Repl. § 3-1401. It alleges merely that he is the owner in fee simple and in possession of the land, and that appellant claims an adverse unfounded interest which is a cloud on this title. The appellant answered under the rules admitting she claimed an adverse interest and denying the other allegations of the complaint and she also filed a counter-claim in short form in which she asserts title to an undivided one-half interest in the land and seeks to quiet her title to said interest.

Trial by jury was waived. The case was submitted to the court, who found that the parties were tenants in common; that the appellee held legal title to the land, but that he held title to an undivided one-half thereof in trust for his co-tenant the appellant; that the value of the land was $9,000; that the appellee expended $8,954.20 for the purchase and improvement of the property; and that the appellee was entitled to contribution from the appellant to the extent of one-half that amount. The appellant was given ten days to pay $4,477.10 into court, and failing, the appellee was given ten days to pay $22.90--the party making payment to report such fact to the court. On appellant's failure to pay, the appellee did pay--and final judgment quieted title in the appellee.

Appellant's motion for new trial asserts the insufficiency of the evidence and the illegality of the decision. In particular she insists the court erred in assuming equitable jurisdiction and rendering a decision involving contribution and accounting. To support her position she says that since both the complaint and counter-claim allege legal titles only, the issue was one for the determination of legal rights, and the court erred in applying equitable principles.

Altho the action to quiet title under the statute is essentially of equitable origin, it is settled law that a complaint or counter-claim to quiet title should disclose whether the title claimed is legal or equitable. If an equitable title is claimed, all the facts which go to maintain it may be shown. Grissom et al. v. Moore et al., 1886, 106 Ind. 296, 6 N.E. 629, 55 Am.Rep. 742; Danforth v. Meeks, 1911, 176 Ind. 400, 96 N.E. 153.

A plaintiff or counter-claimant who pleads a legal title cannot recover on proof of an equitable title. Johnson v. Pontious, 1889, 118 Ind. 270, 20 N.E. 792; Coppock v. Austin, 1904, 34 Ind.App. 319, 72 N.E. 657; Lowes Rev. of Works, Ind. Prac. Vol. I, p. 514. And so in this case neither party could have a decree quieting his title upon proof only of an equitable title in himself.

In her counter-claim the appellant alleges legal title to the land. She proved no such title, and so she could not have a decree quieting title in herself. The appellee did prove legal title in himself, Burns 1943 Repl. § 56-115, Sheets v. Stiefel, 1947, 117 Ind.App. 584, 74 N.E.2d 921, and so was entitled to a decree quieting that title unless a successful defense was interposed.

It has always been held in Indiana that under the general denial in quiet title suits the defendant may give in evidence all defenses he may have, either legal or equitable. Ault v Miller, 1932, 203 Ind. 487, 181 N.E. 35; Chicago & S. E. R. Co. v. Grantham, 1905, 165 Ind. 279, 75 N.E. 265; Watsons Rev. Works Prac. Vol. IV, p. 1301. Under Rule 1-3 the answer filed in this case entitled the appellant to all defenses heretofore available under the general denial, and so the appellant was entitled to prove any equitable defense to appellee's complaint that she...