Schrenker v. Grimshaw

• Citation: 124 Ind.App. 493,119 N.E.2d 432
• Decision Date: 17 May 1954
• Docket Number: No. 18466,18466
• Parties: SCHRENKER v. GRIMSHAW et al.
• Court: Indiana Appellate Court

Page 432

119 N.E.2d 432

124 Ind.App. 493

SCHRENKER v. GRIMSHAW et al.

No. 18466.

Appellate Court of Indiana, In Banc.

May 17, 1954.

Paul E. Schrenker, John D. Staggenburg, Anderson, George Milford, Marion, for appellant.

Campbell, Gemmill, Browne, Ewer & Torrance, Marion, John O. Campbell, Richard E. Sisson, Marion, of counsel, for appellee.

CRUMPACKER, Chief Judge.

This suit was commenced by Olive Pontzious who died before trial and the appellant, as her personal representative, was substituted in her stead. It has for its purpose the cancellation of the following instrument duly entered in the deed records of Delaware County, Indiana:

'This Indenture Witnesseth, that Olive Pontzious, sole and unmarried of Delaware County, in the State of Indiana convey and warrant to Edith V. Grimshaw, sole and unmarried of Grant County, in the State of Indiana, for an in consideration of love, affection and services formerly rendered the receipt whereof is hereby acknowledged, the following described real estate in Delaware County, in the State of Indiana, to-wit:

'Forty-three and one-half (43 1/2) feet of equal width off of the entire South end of Lot Number four (4) in Block Number six (6) in addition to Muncietown, now City of Muncie.

'The Grantor herein holds and maintains in herself a life estate in the above described real estate and this conveyance in fee simple is made subject to the life estate held by the Grantor herein.

'In Witness Whereof, The said Olive Pontzious sole and unmarried has hereunto set her hand and seal this 21st day of October, 1949.

'(Seal) Olive Pontzious (Seal)'

(Here follows notary's jurat.)

On March 3, 1950, Olive Pontzious disaffirmed said deed by formal notice to the grantee, Edith Grimshaw, in which she demanded a reconveyance of the real estate involved to her. As such reconveyance was not forthcoming she sought relief in equity by a complaint in two paragraphs in the first of which she charges that she executed said deed in consideration of a collateral oral contract between herself and the grantee, Edith Grimshaw, whereby said Grimshaw agreed to nurse her, support and comfort her, be her companion and, in general, take care of her for the remainder of her life and pay her funeral expenses upon her death. She further charges a breach of such contract by Grimshaw in many particulars and asks that said deed be set aside and held for nought. The second paragraph of complaint proceeds upon the theory that she executed said deed because of undue influence exercised over her by the grantee, Grimshaw, and prays the same relief.

It appears that after Olive Pontzious commenced this suit she made a will in which the real estate here involved was devised to the appellee Lavon Hiatt and after Olive Pontzious died the appellant filed an amended complaint naming said Hiatt as a party defendant to answer to her interests and alleging the insolvency of the Pontzious estate and the necessity of using the real estate here involved to make assets to pay debts. Otherwise the material allegations of the amended complaint are the same as those set out in the original complaint filed by Olive Pontzious. The record discloses no appearance or answer by the defendant Hiatt nor was she defaulted for any reason. The defendant Grimshaw joined issue by an answer agreeable to Rule 1-3 and, on change of venue, the case was tried to the Grant Superior Court and resulted in a finding and judgment for the appellee Grimshaw from which the executor Schrenker appeals.

We are asked to reverse because the appellant considers that the court erred in overruling his motion for a new trial which sets out four specifications which, because of necessary comment, we quote verbatim: '(1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the court erred in sustaining all objections to the questions asked in the introduction of the evidence of the decedent, Olive Pontzious, by virtue of her deposition; (4) the court committed the following irregularity, to-wit: by announcing in open court that the funeral bills, while not a legal obligation of the defendant Grimshaw, in view of his finding for her, became her moral obligation, and he expected her to pay the funeral bills of the decedent Olive Pontzious or he would sustain a motion for a new trial.'

The decision of the court being negative as to the appellant, upon whom the burden of establishing his case rested, specification (1) presents no question. Cart v. Fleming, 1950, 119 Ind.App. 690, 88 N.E.2d 577; Wadler v. Mogul Rubber Corporation, 1945, 116 Ind.App. 152, 61 N.E.2d 472.

Specification (3) shows none of the questions asked and the objections thereto. We have repeatedly held where error is predicated on the exclusion of evidence the motion for a new trial must specifically set out the question propounded, the objections made, and the court's ruling thereon or otherwise no question for review is presented. Rogers Cartage Co. v. Peglow, 1952, 122 Ind.App. 481, 106 N.E.2d 235; Bulen v. Pendleton Banking Co., 1948, 118 Ind.App. 217, 78 N.E.2d 449. Furthermore, in the appellant's condensed recital of the evidence the substance of Olive Pontzious' deposition is narrated in full so we assume that the court, for some reason undisclosed by the record, admitted said deposition in evidence notwithstanding its alleged ruling to the contrary.

The matter complained of in specification (4) is not a part of the record unless brought in by special bill and we find none but, even if such matter were properly before us, it is apparent that it is nothing of which the appellant can complain. It is certainly no concern of the appellant that an obligation was imposed upon the appellee Grimshaw which the court considered she had no legal nor equitable duty to perform. Any error involved in the incident harmed no one but the appellee Grimshaw and she is not complaining.

So, in final analysis, we are left with but one question to decide: Is the decision of the court contrary to law? In this connection the appellant contends that the undisputed evidence entitles him, as a matter of law, to the relief he sought but which the court denied him. He bases this contention on the following principle of law announced in Lindsay v. Glass, 1889, 119 Ind. 301, 21 N.E. 897: When one who is laboring under the infirmity and decrepitude of old age, disposes of his property on the promise of another to support and take care of him for the remainder of his life, the courts are inclined to treat the conveyance, so long as the contract for support remains executory, as having been made upon the condition subsequent that the promise to furnish care and maintenance shall be fully and fairly performed. Until the contract is fully performed on both sides, it is liable to be rescinded and the property reclaimed, leaving the parties to the remedies, respectively, for what may have...