Sinclair v. Gunzenhauser

• Decision Date: 27 March 1912
• Docket Number: No. 21,728.,21,728.
• Parties: SINCLAIR et al. v. GUNZENHAUSER et al.
• Court: Indiana Supreme Court

179 Ind. 78

98 N.E. 37

SINCLAIR et al.

v.GUNZENHAUSER et al.

No. 21,728.¹

Supreme Court of Indiana.

March 27, 1912.

Appeal from Circuit Court, Lake County; H. J. Paulus, Special Judge.

Action to quiet title by John Gunzenhauser against Susan W. Sinclair and others. From a judgment for plaintiff, Susan W. Sinclair and another appeal. Affirmed.John H. Gillett, Wm. J. Whinery, John F. Reilly, and Wm. F. Humphrey, for appellants. John B. Peterson, Otto J. Bruce, Peter Crumpacker, H. F. MacCracken, J. Kopelke, Knapp & Campbell, and John R. Cochran, for appellees.

MYERS, J.

Appellee Gunzenhauser instituted in the Lake circuit court March 17, 1906, an action to quiet title to one section of land, except certain railroad rights of way, in Lake county, Ind., naming as defendants a number of persons, including appellant Susan W. Sinclair, and “all the heirs, devisees, legatees and trustees of Lucy A. Ellis,” which included the appellant Gertrude Cleveland, a daughter of Lucy Ellis. A supplemental complaint was filed April 27, 1906, more specifically describing the land. Publication was made, and on May 21, 1906, a decree quieting title in appellee Gunzenhauser was entered upon default. On March 2, 1908, appellant Gertrude Cleveland filed her petition to set aside the default and judgment, and be permitted to defend and tendered an answer, and on March 4, 1908, the decree was vacated. On May 5, 1908, appellant Sinclair filed her petition to set aside the decree and default, and be permitted to defend, and tendered an answer, and on May 22, 1908, the decree was vacated, and on May 29, 1908, appellant Cleveland filed her cross-complaint against the plaintiff and her co-defendants, and additional parties, to quiet her title to the undivided one-half of the same real estate. On September 8, 1908, appellant Cleveland filed an amended cross-complaint to quiet her title to the undivided one-half of the real estate against the original plaintiff and all the original defendants, and the defendants named in the cross-complaint of appellant Cleveland. On December 18, 1908, appellant Sinclair filed an amended cross-complaint against the plaintiff and all cross-defendants, making additional parties defendants. The cross-complaints were alike, each seeking by one paragraph to quiet title to the real estate described in plaintiffs' complaint, but more particularly described, a second paragraph in ejectment, a third paragraph to enforce an express trust in the land, and to quiet title, and a fifth paragraph asking to be permitted to redeem from a mortgage, and tendered the amount claimed to be due, and upon payment, sought to have the title quieted. Appellant Sinclair filed a sixth paragraph to quiet her title to the whole of the land, a seventh claiming equitable ownership, and demanding possession and damages, and a supplemental cross-complaint to each paragraph, setting out certain facts from which she claimed equitable ownership and demanding that her title be quieted, and for possession. Answers in general denial were filed to the complaint by appellants Sinclair and Cleveland, and answers in general denial were filed to the cross-complaints of appellants Sinclair and Cleveland, and numerous affirmative answers, which were all withdrawn before trial, except the answers to the fifth paragraph of each of their cross-complaints. The answers to the fifth paragraphs of their several cross-complaints were in general denial, and the 5, 10, 15, and 20 year statute of limitations. To these affirmative answers there was reply in general denial, and nonresidence of appellants for more than 20 years next before the commencement of the suit. There was a special finding of facts made, conclusions of law stated, and judgment rendered for the appellees. The errors assigned are as to each conclusion of law; in overruling the motion for a venire de novo, and overruling the motion for a new trial.

The facts found embrace 86 pages of closely printed matter, but we endeavor to give sufficient to present the questions in the case, as the facts are found by the trial court.

On October 2, 1872, one Kerfoot, the common source of title, was the owner of the real estate in controversy, and on that day executed a conveyance of the same to Amariah Dewey for a named consideration of $6,400, and the deed was recorded in Lake county October 5, 1872. The purchase was made by one Joseph Sinclair and one William S. Proudfoot, who represented to Dewey that they had a purchaser who would within a few days purchase from Dewey, that Dewey should provide the money to secure the real estate, and that the profits should be equally divided between them. On January 6, 1873, Dewey, at the request of Sinclair, acting for himself and as agent of Proudfoot, signed and acknowledged a warranty deed for the land to appellant Susan W. Sinclair, which deed was delivered to Joseph Sinclair on or prior to March 28, 1873, and on that day recorded in the proper deed record in Lake county. The consideration for the deed to Susan Sinclair was the payment by Joseph Sinclair and Proudfoot to Dewey in equal portions of the sum of $4,033.37 in cash received by them from a mortgage or trust deed executed by said Susan W. Sinclair on the 28th day of March, 1873, to one Henry W. Bishop as trustee to secure the payment of $8,000 borrowed by said Joseph Sinclair and Proudfoot from one Joel H. Wicker evidenced by their promissory note to him, executed in the state of Illinois, dated March 28, 1873, payable one year after date at the First National Bank of the city of Chicago, Ill., and the assumption by Susan in her deed of an indebtedness of $4,384.66 secured by a mortgage on the land executed by Dewey to one Benze October 15, 1872. Said Susan, an unmarried woman, took the title under an oral agreement between herself and Joseph Sinclair, who was her father, acting for himself and Proudfoot, to hold the land in trust for her father and Proudfoot in equal shares, without any intent to cheat, hinder, or delay the creditors of either, and without any fraudulent intent on the part of any one. At the request of the father, and with the knowledge and consent of Proudfoot, Susan Sinclair on March 28, 1873, executed to Bishop, trustee, a mortgage or trust deed to secure the payment of the $8,000 borrowed by them of Wicker, and the mortgage and trust deed was recorded in the proper record in Lake county, Ind., on the 26th day of June, 1874, at which time and up to June 20, 1874, Susan held the land in trust for Joseph Sinclair and Proudfoot, without any other conveyance or mortgage, and at the time of the execution of the mortgage, and for many years thereafter the land was not worth more than the Wicker debt. After the payment of Dewey, there remained from the Wicker loan a net profit of $800 to those entitled to it.

As some stress is laid upon the force and effect of the instrument executed by Susan Sinclair to Bishop, trustee, to secure the Wicker note, we set it out: “This indenture made this 28th day of March, in the year of our Lord one thousand eight hundred and seventy three, between Susan W. Sinclair (unmarried) of the city of Chicago, in the county of Cook and state of Illinois, party of the first part, and Henry W. Bishop, of the city of Chicago, in the county of Cook, state of Illinois, party of the second part, witnesseth: Whereas, Joseph S. Sinclair and William S. Proudfoot, of said city of Chicago, have made there one (1) certain promissory note, bearing date, Chicago, Illinois, March 28th 1873, payable to the order of Joel H. Wicker, one (1) year after the date thereof at the First National Bank of Chicago, Illinois, with interest at the rate of ten per cent. per annum, said note being for the sum of eight thousand dollars ($8,000) said note being given for money loaned on the premises hereinafter described. Now therefore, said party of the first part, in consideration of the premises, and one dollar in hand paid by said party of the second part, the receipt thereof is hereby confessed, do hereby grant, bargain, sell and convey unto said party of the second part, his heirs, assigns or successors in trust, forever, all the premises situated in the county of Lake and state of Indiana and described as follows: [Here follows a description.] To have and to hold the same with all and singular the privileges and hereditaments thereunto belonging, unto the said party of the second part, his heirs, assigns, or successors in trust, forever. In trust nevertheless, that in case of default in the payment of said promissory note, interest or either or any part thereof, or in case of a breach of any of the agreements herein mentioned, then on application of the legal holder of said note, it shall be lawful for said party of the second part, his heirs, assigns or successors in trust, to enter into, and upon the premises hereby granted, or any part thereof, and to receive all rents, issues and profits thereof, and to sell or dispose of said premises or any part thereof, either in mass, or in separate parcels, as said second party, his heirs, assigns, or successors, may prefer, at public auction, at the north door of the courthouse in the city of Chicago, in the state of Illinois, for the highest and best price the same will bring in cash, twenty (20) days notice of such sale being first given in one of the newspapers published in said city of Chicago; to adjourn such sale from time to time, and for such time as may be thought expedient, and to make and deliver to the purchaser or purchasers at such sale, good and sufficient deed or deeds of conveyance for the premises sold, which deed or deeds shall be in all such cases prima facie evidence of the truth of the recital herein, and that such sale, was in all respects according to the requirements of this deed; and out of the proceeds of such sale, after first paying all costs of advertising and sale, commissions and all other expenses...