Smith v. Smith, 18367

• Decision Date: 05 November 1953
• Docket Number: No. 18367,18367
• Citation: 115 N.E.2d 217,124 Ind.App. 343
• Parties: SMITH v. SMITH et al.
• Court: Indiana Appellate Court

Page 217

115 N.E.2d 217

124 Ind.App. 343

SMITH v. SMITH et al.

No. 18367.

Appellate Court of Indiana, In Banc.

Nov. 5, 1953.

Anderson, Hicks & Anderson, F. L. Anderson, Sr., F. L. Anderson, Jr., Gary, for appellant.

Murray & Schell, Gary, for appellees.

ACHOR, Presiding Judge.

This is an action for divorce and custody of the minor child of the parties. To this action, appellant filed a cross-complaint in which he asked for a divorce and asserted that he was owner of a one-half interest in the real estate, legal title to which was in appellee.

In substance, the cross-complaint alleged that appellant, appellee and their son, Albert, entered into a lease-contract for the property in question, which agreement provided that after ten monthly payments at $60 a month, the parties could enter into a subsequent contract of purchase with payments at $25 a month. That following the performance of the first agreement the subsequent agreement was entered into. Appellant alleged that, although he did not sign either of these contracts, appellee had agreed to sign for him as his agent. Appellant's name was stricken from the second contract. After its execution, appellee and the son, Albert, parties to said contracts, assigned their interest in said contract to another son, Eddie, who took deed to said real estate and, in turn, secured a mortgage on the property and made substantial improvements thereon. Eddie later transferred the property by warranty deed to appellee who, at the time of the trial, held legal title thereto.

Findings of fact and conclusions of law were requested and given by the court. Errors on numerous issues were assigned and argued by the appellant as cause for a new trial. (1) Appellant questions the sufficiency of the conclusions of law to support the judgment of the court. He asserts that they are defective both (a) in form and (b) in substance. (2) He contends that the conclusions of law, if any, are not supported by the findings of fact; (3) that certain of the findings of facts are not supported by the evidence; (4) that, because of the failure of the court to specially find certain facts in evidence related to necessary issues in the case, the judgment is contrary to law, and, (5) finally, that the refusal of the court to require appellee to produce receipts of payments was prejudicial and constituted reversible error.

By the judgment appellee was granted a divorce, the care and custody of Ola Mae, aged 13. Appellee was awarded the household goods and it was adjudged that appellee was the owner in fee simple of the real estate placed in issue by appellant's cross-complaint. Appellant was ordered to pay $20 every two weeks for the support of the child and $450 additional attorney fees.

Admittedly, the conclusions of law are poorly drafted, but they are sufficient to indicate the conclusions drawn by the court in the exercise of its legal judgment, based upon the facts found. Therefore, they must be classified as conclusions of law. 53 Am.Jur., § 1132, p. 786. Appellant particularly challenges the sufficiency of conclusions of law No. 3, which was as follows: 'That plaintiff, Olar Smith, is the owner in fee simple of the real estate described in finding No. 7 hereinabove.' Appellant contends that the statement is a finding of fact, and not a conclusion of law and, therefore, can not be considered as supporting the judgment. However, it is not necessary to determine that issue, under the facts before us.

In this case, the court not only concluded that appellee was the owner in fee simple of the real estate but, by its conclusion of law No. 7, the court, in substance, stated, as a conclusion of law, that appellant was entitled to recover nothing 'upon his cross-complaint or any of the issues created thereby.' It was only by this cross-complaint that the legal title in appellee was challenged. Upon this issue appellant had the burden of proof. The rule is now well established that '* * * While it is proper to include the detailed degal conclusions applicable to the facts as found, it is sufficient to set forth one conclusion 'The law is with the plaintiff (or, defendant)', and if this conclusion is included, others will be regarded as surplusage. * * *' Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, Ch. 25, § 1733, p. 356. By the same reasoning, it would follow that, in the presence of a general conclusion of law against the party having the burden of proof, such general conclusion would be controlling of a specific conclusion upon the same issue, although stated favorably to the other party. Under these circumstances, a specific conclusion upon the issue of ownership of the real estate was unnecessary and would be mere surplusage.

However, appellant further contends that any conclusion of law which denies him partial ownership to the real estate is contrary to law, for the reason that the facts specially found, and the undisputed evidence of facts, regarding which the court erroneously failed to state findings of facts, necessarily supported a conclusion of law that appellant was owner of an equitable interest in the real estate, which he was entitled to have set off to him. He stresses the fact that the court, in its special finding of fact No. 5, specifically found that both 'plaintiff and defendant * * * leased by written lease' the real estate in controversy; that it was this 'lease'-(contract) by which both appellant and appellee originally acquired an equitable interest in said real estate; that said 'lease'-contract had been fully performed and that, pursuant to the express terms thereof, the subsequent contract to purchase was entered into; that appellant lived on the property at the time the second agreement was entered into; that said second contract expressly stated that it was 'subject to the rights of the present tenants'; that appellant's equitable interest was not divested by any of the subsequent assignments or conveyances. Appellant argues that these facts were not in dispute and that failure to so find was error, and that such facts could lead to the single conclusion that, as a matter of law, appellant was the owner of an equitable interest in the real estate and that the judgment to the contrary was erroneous. However, under the circumstances before us, the contents of the 'lease' and contract were merely primary facts. The same findings of facts also contained...