Starkey v. Starkey
| Decision Date | 31 January 1894 |
| Docket Number | 16,540 |
| Citation | 36 N.E. 287,136 Ind. 349 |
| Parties | Starkey et al. v. Starkey |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
The judgment is affirmed.
J. T Beasley, A. B. Williams and W. C. Hultz, for appellants.
J. T Hays and H. J. Hays, for appellee.
This was an action by appellee to enforce specific performance of a parol contract to convey land.
On the overruling of demurrers to the complaint, there was an answer in general denial.
At the request of the appellants, the facts were found specially. Conclusions of law followed in favor of the appellee, and on the overruling of a motion for a new trial, a decree was entered in accordance with the conclusions of law.
Numerous errors are assigned for our consideration.
The fifth assignment of error is that "The court erred in overruling the exceptions of George W. Starkey, to the conclusions of law stated upon the special finding of facts."
The sixth, seventh, and eighth assignments are similar; and appellee insists that these assignments are not well made.
By section 551, R. S. 1881, it is provided that "Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial in which case, the court shall first state the facts in writing, and then the conclusions of law upon them," etc.
Under the provisions of this statute, it has long been held that if the court has erred in its finding of facts, the proper means of reaching the error is to move for a new trial, unless the finding is so imperfect that no judgment can be based upon it, when a motion should be made for a venire de novo.
If the motion for a new trial is overruled, an exception should be entered to such ruling, and then it must be assigned as error, on appeal, that the court erred in overruling the motion for a new trial.
If, however, the court has erred in its conclusions of law on the facts found, an exception should be made to the conclusions of law, and then the assignment must be that the court erred in its conclusions of law. Montmorency Gravel Road Co. v. Rock, 41 Ind. 263; Cruzan v. Smith, 41 Ind. 288; Lewis v. Haas, 50 Ind. 246; State, ex rel., v. Berg, 50 Ind. 496; Selking v. Jones, Admr., 52 Ind. 409; Dehority v. Nelson, 56 Ind. 414.
In this case, instead of making the assignment that the court erred in its conclusions of law, the assignment made by appellants is that the court erred in overruling the exceptions to the conclusions of law. Whether it would be error in the court to overrule the exceptions to the conclusions of law, we need not inquire, since it is not shown by the record that the court did overrule such exceptions. The court took no action, and was not required to take any action, on appellants' exceptions; but the appellants, having duly excepted to the conclusions of law, should have assigned those conclusions as error. Having failed to make such assignment, there is no question before us on the conclusions of law by the court.
As, however, the errors complained of under the assignment relating to the conclusions of law are substantially the same as those discussed in considering the demurrers to the complaint, appellants have lost no rights by reason of the erroneous assignments.
The remaining assignments of error discussed by counsel relate to the sufficiency of the complaint and to the overruling of the motion for a new trial.
It is alleged in the complaint, that on and prior to the day of -----, 1884, George W. Starkey was the owner in fee-simple of certain real estate in Sullivan county, described in the complaint; that the said George W. Starkey has three children only, of whom the appellee, aged thirty-one years, is the eldest; that at said date, in 1884, the appellee was of age, was married and had three small children, to whom their grandparents, the said George W. Starkey and his wife, then living, were greatly attached; that at said date the appellee made arrangements to move, with his family, to the State of Illinois, to live there permanently. But the said George W. Starkey, being advised of appellee's arrangements and intentions to move to Illinois, did propose to, offer, and agree with appellee, his son, that if appellee would give up going to Illinois to live, and would move, with his wife and children, upon said tract of land, and settle upon the same, and remain there, so that appellee might be near him, and he might enjoy the society of appellee and his family, and if appellee would give him one-third of the grain raised on a certain part of said land, until such time as the said George W. Starkey would get in better financial circumstances, he, the said George W. Starkey, would convey said land to appellee in fee-simple, and in the meantime the appellee might go ahead and improve the said land as his own, and for the consideration aforesaid the said land should and would belong to appellee, in fee-simple, forever; that the appellee did then and there accept said proposition, and, pursuant to said contract, and at the instance of, and with the full knowledge and consent of, the said George W. Starkey, the appellee did forego his intention of moving away, and did cancel his arrangements to go to Illinois, and did move upon said land, and was, by the said George W. Starkey, then and there put in full, absolute, and peaceable possession and control of all of said land as his own, and, in compliance with said contract, has ever since resided thereon, and still resides thereon, and has fully complied with the terms of said contract on his part; that, prior to November 21, 1890, appellee made valuable and lasting improvements on said land, which improvements are described in the complaint; and during the seven years since he was so put in possession, he has employed all his time and means in making improvements and betterments upon said land, having at all times had the assurance of the said George W. Starkey that said lands belonged to appellee, and that he would receive a deed therefor according to contract, and never had any notice or intimation to the contrary until after November 21, 1890, on which day, in disregard of appellee's rights, and without his knowledge or consent, and while appellee was in full possession, as aforesaid, the said George W. Starkey made a deed for said land to the appellant George N. Fuller, who knew at the time of appellee's full possession and occupancy of the...
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