Sherrin v. Flinn

• Decision Date: 21 November 1900
• Docket Number: 18,850
• Parties: Sherrin et al. v. Flinn
• Court: Indiana Supreme Court

58 N.E. 549

155 Ind. 422

Sherrin et al. v. Flinn

No. 18,850

Supreme Court of Indiana

November 21, 1900

From the Grant Circuit Court.

Affirmed.

Austin De Wolf, G. A. Henry and P. H. Elliott, for appellants.

A. E Steele, W. S. Marshall and J. A. Kersey, for appellee.

OPINION

Dowling, J.

Suit by the appellee against the appellants to obtain the cancelation of a deed executed by appellee, and to quiet his title to the land therein described. Complaint in two paragraphs. The material allegations of the first paragraph are that the appellee was the owner in fee simple of the two tracts of land described in the complaint, situated in Grant county Indiana, of the value of $ 6,000; that the appellant, Huldah M. Sherrin, is the daughter of the appellee, and that her codefendant, Levi, is her husband; that the appellants having first acquired the confidence of the appellee by simulated kindness to him, for the purpose of cheating and defrauding him, and depriving him of his said land, and aided by the father of the appellant Levi, who was a trusted friend of the appellee, persuaded the appellee to convey his said lands to the appellants, jointly, by warranty deed, in consideration of their oral promise to give him a home with them on said lands so long as he should live, and to support, provide for, nurse, and take care of him when sick, and for the further consideration that appellants should execute to the appellee their promissory notes for $ 1,000, bearing interest at the rate of six per centum per annum, and payable thereafter at such time as should be agreed upon; that at the time of such persuasion appellee was growing old, he was in feeble health, he was easily influenced by the appellants, he confided in their honesty and affection, and he fully relied upon their said promises. In this confidence and belief, and without any other consideration than the promises aforesaid, he executed to the appellants, jointly, a deed of conveyance of and for his said lands, and put them in possession thereof; that when said promises were so made, the appellants had no intention of performing them, and made the same fraudulently, solely for the purpose of obtaining such conveyance; that immediately after securing said deed, the appellants changed their demeanor toward appellee, and thereafter treated him only with coldness, indifference, and neglect in health and sickness; that they failed to provide him with a home as they had agreed to do, and refused to execute their notes for the said sum of $ 1,000; that the appellants by their unkindness attempted to drive the appellee from their home on said lands, and when they found they could not succeed by that means they leased said lands to strangers, and moved away therefrom; that appellants have had the possession of said lands ever since the execution of said deed, to wit, from April 5, 1894; that the rents and profits for the time they have held said lands are worth $ 1,500, and that they have cut and removed timber from said lands of the value of $ 300. It is further averred that, before bringing the action, appellee demanded that appellants carry out their agreement with him, but that they refused to do so, and that he then demanded a reconveyance of the said lands, and the surrender of the possession thereof, which requests, also, were refused; that appellants are entirely insolvent, and have no property subject to execution.

The relief demanded is that the deed executed by appellee be decreed void, that appellants be required to reconvey said lands to appellee, and upon their failure to do so that such conveyance be made by a commissioner of the court, that appellee's title to said lands be quieted as against the appellants, that he have judgment for $ 2,000 damages, and other proper relief.

The second paragraph of the complaint does not differ materially from the first.

Appellants demurred to each of these paragraphs. Their demurrers were overruled, and they filed a joint answer in denial. The cause was tried by the court, and there was a finding and judgment in favor of the appellants. Appellee thereupon filed a motion for a new trial as of right, with the proper undertaking, and this motion was sustained. Appellants moved to set aside the order granting the new trial, and to restore the judgment. Their motion was overruled, a change of judge was demanded by appellee, and the cause was transferred to the Grant Circuit Court. It was tried by the court, and there was a general finding in favor of the appellee. Judgment was rendered on the finding to the effect that the appellee was the owner in fee simple of the lands in controversy; that his title thereto be quieted; that he recover the possession thereof, and that he recover his costs.

Appellants moved for a new trial on the ground that the finding was not sustained by sufficient evidence, and that it was contrary to law. Motion overruled. Exceptions to the rulings of the court were properly reserved by appellants.

Error is assigned upon the decisions of the court on the demurrers to each paragraph of the complaint; in granting a new trial to appellee as of right; in refusing to vacate the order granting the new trial; and in overruling appellants' motion for a new trial.

The appellee objects to the consideration of the errors assigned because of certain alleged imperfections in the record, but, in view of the subsequent proceedings of the parties, these objections cannot prevail. Powell v. Bunger, 91 Ind. 64; Louisville, etc., R. Co. v. Lockridge, 93 Ind. 191.

Counsel for appellants insist that neither paragraph of the complaint states a cause of action. They assert that the facts pleaded entitle the appellee neither to a decree quieting his title, nor to a judgment for the recovery of the lands.

It is very clearly shown in each paragraph that the appellee was the owner of the lands in dispute; that the execution of the deed under which the appellants claim title to the land, was obtained by imposition and fraud; that the appellants hold and claim the lands by virtue of that deed; and that the conveyance ought to be set aside. It also appears that the legal title to the land is in the appellants; that the title of the appellee is an equitable one, and that the relief to which he was entitled, and which he demanded, was that his title be quieted as against any claim of the appellants. These averments, we think, were sufficient. Brown v. Ogg, 85 Ind. 234; Stockton v. Lockwood, 82 Ind. 158; Grissom v. Moore, 106 Ind. 296, 55 Am. Rep. 742, 6 N.E. 629; Kitts v. Willson, 106 Ind. 147, 5 N.E. 400; Hall v. Durham, 109 Ind. 434, 9 N.E. 926; Ikerd v. Beavers, 106 Ind. 483, 7 N.E. 326; Otis v. Gregory, 111 Ind. 504, 13 N.E. 39; Anderson v. Anderson, 128 Ind. 254, 27 N.E. 724; Comegys v. Emerick, 134 Ind. 148, 39 Am. St. 245, 33 N.E. 899.

The...