Schwab v. Schwab

• Citation: 130 Ind.App. 108,162 N.E.2d 329
• Decision Date: 16 November 1959
• Docket Number: No. 19012,No. 2,19012,2
• Parties: Harry SCHWAB, Appellant, v. Charles A. SCHWAB, Appellee
• Court: Court of Appeals of Indiana

Page 329

162 N.E.2d 329

130 Ind.App. 108

Harry SCHWAB, Appellant, v. Charles A. SCHWAB, Appellee.

No. 19012.

Appellate Court of Indiana, Division No. 2.

Nov. 16, 1959.

Curtis W. Roll, Kokomo, for appellant.

Brown, Reller, Mendenhall & Kleinknecht, Richmond, by Paul S. Mendenhall, Richmond, for appellee.

KELLEY, Judge.

The complaint of the appellee is for the recovery of the possession of real estate and is in the usual form. The appellant answered in denial, and also filed a counterclaim.

The counterclaim alleges, in substance, that the appellant and appellee are brothers; that prior to June 9, 1952, one John M. Harlan was the owner of the land described in the complaint; that prior to said date appellant desired to purchase the real estate from said owner; that prior to June 9, 1952, 'it was agreed' between appellant and appellee 'that said real estate would be purchased from said John M. Harlan'; that appellee 'would take title to said real estate' in appellee's 'own name'; that appellant 'would furnish the consideration' for the purchase of said real estate and that appellee 'would hold record title' to said real estate 'for the use and benefit and in trust, for and on behalf' of appellant; that said real estate was purchased from said owner, 'said title being taken in the name of the plaintiff (appellee), and that defendant (appellant) herein furnished the consideration therefor'; that there was a valuable consideration for said agreement and said agreement 'was free from fraud in any particular'; that appellee seeks possession of the premises in violation of his trust to appellant's damage in the sum of $500. The prayer is that appellee be denied possession of the real estate, that a trust be decreed in favor of appellant, and for $500 damages. Appellee denied the allegations of the counterclaim.

The court found for the appellee and 'against' the appellant and that appellee is the owner of and entitled to the possession of the real estate. Judgment for appellee.

The questions presented for decision herein arise upon the following facts which we deem established by the evidence favorable to the judgment:

The appellant and appellee are brothers. By inference it appears that appellant was the former owner of the real estate involved. He lived thereon from 1936 to the time of the trial on July 12, 1956. Appellant became indebted to one Charles Partlow, which indebtedness was secured by a mortgage on the real estate. On April 24, 1951, the latter obtained a judgment against appellant with decree of foreclosure of the mortgage; the judgment was thereafter assigned to said John M. Harlan and pursuant to the foreclosure proceedings, the said John M. Harlan received, and duly recorded, the Sheriff's Deed conveying said real estate to him. Thereafter appellant unsuccessfully endeavored to arrange with Harlan for the purchase of the property. He then sought a loan at a local bank for funds with which to pay Harlan for the property but appellant's wife, who was a party to then pending divorce proceedings between them, refused to execute the necessary papers and the solicited loan was never consummated.

Thereafter, on June 9, 1952 appellee obtained a loan of $1210 from a bank in Richmond, Indiana, and executed his personal note therefor, secured by a mortgage on the real estate, payable at the rate of $35 per month over a period of three years. With the money so obtained, being $1000, (the $210 representing advance interest to the bank) appellee purchased the real estate from the said John M. Harlan, who conveyed the same to the appellee. No part of the consideration for the deed was paid by appellant, the entire consideration being supplied by means of the said loan made by appellee. The bank payment book was sent to the address where appellant lived instead of to the address of appellee. This is unexplained except by appellee's statement that 'they must have thought that I lived there, and they sent there here----.' Appellant made the first payment and from that time appellant made some payments and appellee made some. The payments made by appellant totalled 'around seven hundred dollars.' There was no rental agreement between appellant and appellee and appellee testified that he 'figured' that the payments made on the mortgage by appellant were 'for the use of the property.' In the fall of 1952, payments to the bank became delinquent and appellee was notified that the bank was looking to him for the payments. Appellee paid up the delinquency. Again in June of 1953, appellee was notified by the bank that the payments were delinquent and appellee paid up. Thereafter appellee maintained the payments on a reasonably current basis. There is evidence that appellant made no payments during the three years prior to the trial. In April of 1954, the loan, then approximating a balance of $60.74, was paid off by appellee and the loan renewed in the face amount of $610.74, representing, apparently, the payment of the $60.74 balance on the old loan, $139 interest to the bank, and cash remittance of $411. In September or November of 1954, the loan was paid off by appellee, apparently (the evidence is extremely meager, confused, and indefinite) from funds he obtained on a loan from the West End Building and Loan.

At the time appellee purchased the real estate and secured the deed therefor, the taxes thereon were delinquent for a period of some two years and advertisement for sale for the delinquencies was to be made the following week. Appellee paid said taxes and thereby avoided the tax sale. Appellee continued to pay the taxes thereafter. (Appellant contests this on the ground of a stipulation which he says shows that appellee paid only $44 for taxes since June 9, 1952. It is clear, however, from all the pertinent evidence that said stipulation had reference to the first payment of a sewer assessment).

Appellant put some improvements on the property without any agreement or arrangement with appellee. There is evidence indicating that appellee knew that appellant 'was working around over there. * * * I knew he started on that two rooms down there. It went slow, a board or two at a time.' As to the sewer appellant said he put in, appellee testified he did not know it 'until after it was put in.' Appellant and appellee, as brothers, were on friendly terms until the fall of 1954, at which time appellee had an altercation with appellant's wife, since which time appellee and appellant have ceased to converse with each other.

Appellant held the burden of proving the allegations of his counterclaim that he agreed with appellee that the latter would take the title to the real estate in his own name in trust for appellant and that appellant furnished the consideration therefor. As the decision of the court was adverse to appellant on the counterclaim, the specification in his motion for a new trial that the decision is not sustained by sufficient evidence is unavailing to him. Appellant, therefore, must establish that the decision is contrary to law, that is, that the court denied him relief to which the evidence entitled him. Wadler v. Mogul Rubber Corporation et al., 1945, 116 Ind.App. 152, 154, 61 N.E.2d 472; Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905. The evidence thus far recited wholly fails to establish any agreement between appellee and appellant that the former was to take and hold the title to the real estate in trust for the latter or that appellant furnished or supplied any part of the consideration paid to Harlan for the property. Appellant, however, insists that there is evidence sufficient to establish such agreement between the parties and that the court should have so found.

He suggests that a certain part of the testimony of Mr. Harlan from whom appellee purchased the real estate, showed that there was an agreement between appellant and appellee to the effect contended for. In particular, appellant emphatically states in his brief that Mr. Harlan said that 'At the bank he heard a conversation between Charles and Harry Schwab to the effect that Charles was to take title to the property, to hold the same in trust for Harry.' The record reveals the following pertinent portions of the testimony of Mr. Harlan bearing on the subject matter now under consideration:

'Direct Examination by Appellee.

* * *

* * *

'Q. Did you hear any conversation between Charles Schwab and Harry Schwab to the effect that Charles Schwab was to take title to the property, to hold the same in trust for Harry Schwab? A. I can not now recall who was present at such conversation. I do remember that I was told that these brothers had worked something out.

'Q. By whom were you told? A. I believe--I am trying to recall the exact situation. To be right frank about it, I am not sure whether I was told by Mr. Stoner or by one of the parties to this action.

'Q. You have no specific recollection of any definite conversation that you can tell the court about, then? A. I can not place any conversation, no.'

'Cross-Examination by Appellant Question by the Court

* * *

* * *

'Q. Did you have any conversation with this man, Charles Schwab, about an agreement between him and his brother, as to who was to pay the money to buy this place, and who was to take title, and what for? Do you recall any such conversation? Do you remember what they said? A. I know that, in the course of events in this transaction, I did have some conversation with the gentlement here.

'Q. Charles Schwab? A. Yes.

'Q. The plaintiff, the man that borrowed the money from the bank? A. That's right.

* * *

* * *

'Q. So he paid the purchase money by borrowing the money from the bank, and he put the mortgage on it, and the deed was made to him? A. That's right. I can not now pinpoint any conversation as to who was present at the time. There were perhaps a half dozen conversations about this thing, and then there was a lull in which I heard nothing until...