Summerlot v. Summerlot

Decision Date20 August 1980
Docket NumberNo. 1-280A48,1-280A48
Citation408 N.E.2d 820
PartiesRedith K. SUMMERLOT, Defendant-Appellant, v. Jack M. SUMMERLOT, Plaintiff-Appellee.
CourtIndiana Appellate Court

Arnold H. Brames, Brames, Bopp & Haynes, Terre Haute, for defendant-appellant.

B. Michael McCormick, McCormick, Weber & Boswell, Terre Haute, for plaintiff-appellee.



Defendant-appellant Redith K. Summerlot (Redith) appeals from a judgment in favor of her son, plaintiff-appellee Jack Summerlot (Jack), decreeing specific performance of an oral contract to convey real estate made between Jack and his now deceased father Clyde Summerlot (Clyde) and Redith on December 29, 1950.


Because in reviewing questions as to the sufficiency of the evidence to support the trial court's judgment this court looks to the facts most favorable to the appellee, we cull the facts in this case from the appellee's thirty-five comprehensive and detailed Findings of Fact adopted by the court.

Plaintiff-appellee, Jack Summerlot, was born March 11, 1925, the second of five children of Clyde and Redith Summerlot, then tenant farmers in Vigo County near In 1948 Clyde leased approximately seventy acres of land known as the "railroad property" located across the road from the Penna property. Jack did the major portion of farming here in addition to farming the Penna property and other properties for farmers in the community, the latter on a two-thirds/one-third basis. In December 1950 Jack and his parents decided to purchase the railroad property for $14,500. It consisted of four separate tracts: the Blake tract (15 acres), the Anders tract (15 acres), the Francis tract (10 acres), and the Cook tract (29.6 acres). The agreement found by the court was that Jack

the Wabash River. In 1941 Clyde and Redith purchased their own place, known as the Penna property, which plaintiff farmed while his father engaged in the feed business. During the 1940's a Summerlot family pattern developed regarding the distribution of farm income and expenses which involved the depositing of monies in the parties' respective accounts and periodic "settlements." The parties split the income fifty-fifty, though there were no written agreements. Both Jack and his mother, however, kept thorough records of the farming transactions for purposes of "settling up."

"would take possession of the 'railroad property,' live on one of the tracts which would be his for staying at home and running the farm operation, and would be credited with any and all over-deposits made by Clyde W. Summerlot and Redith Summerlot from farm income. The total purchase price was $14,500.00. Each of the separate tracts within the railroad property were evaluated and, at such time as it was determined by mathematical computation that Jack Summerlot had paid the sum assigned to each tract, it would become his. Under the agreement, Jack Summerlot was encouraged to make direct payments to the bank on the family farm loan and incur the labor on improvements to the property. Meanwhile, all rental income would be accepted by Clyde and Redith for the purpose of paying on the farm debt, taxes, insurance and the cost of materials for improvements and repairs."

Jack and his wife moved onto the Blake tract early in 1951 exercising ownership as to the entire 70 acres, making improvements thereon, and making payments pursuant to the agreement. In 1959 S & G Excavating Company began removing sand and gravel from a portion of the railroad property eventually netting Clyde and Redith $77,866.34. Jack testified that his father had orally agreed that upon full payment for the railroad property Jack would either be reimbursed for the royalties his father received or be permitted to choose on an acre by acre basis land from the Penna property in exchange for the farm land damaged by the excavations. Jack, however, admittedly relinquished any claim he might have to the Penna property because the parties had failed to discuss the specific land to be transferred of the more than 200 acres in the Penna property. The court found that by the end of 1960 "it was mutually agreed that the plaintiff had paid in full for the railroad property." In the 1960's domestic difficulties developed between Jack and his wife culminating in divorce in 1968. Jack contends that he did not seek conveyance of the railroad property during that time because of the divorce proceedings. Both Jack's and Clyde's testimony from those proceedings were introduced by the defendant in the present case and negate any agreement between the parties other than a tenant farmer relationship. During the 1960's the parties had split equally all soil banks monies received from the farm and made equal deposits until 1968 when Clyde and Redith deposited the entire soil bank check in their account "to be applied toward the balance due on the railroad property." Jack interpreted this as a breakdown of their earlier agreement, made a demand for the conveyance of the real estate, and though he prepared the fields for planting in 1969, terminated his involvement with the farming operation. Plaintiff made several efforts to "settle up" after 1969 and then sought legal advice. He claimed reluctance to bring suit against his mother but felt obliged to do so after he

had been contacted by Martin-Marietta Aggregate Company with an offer to purchase the railroad property and later noticed representatives of that company on the property apparently making a survey of it. The trial to the court involved eight days of testimony and numerous pieces of documentary evidence, swelling the record of proceedings to six volumes, upon which the court based its findings of facts, conclusions of law, and judgment in favor of Jack.


Redith raises four issues for our consideration:

I. Whether the court erred by admitting evidence in violation of Ind.Code 34-1-14-7, a "Dead Man's Statute."

II. Whether the trial court erred by failing to find that Jack's claim was barred by Ind.Code 34-1-2-3, a general statute of limitations cutting off all actions not commenced within fifteen (15) years.

III. Whether the trial court erred by failing to find that Jack's claim was barred by the equitable doctrine of laches.

IV. Whether the trial court erred in ordering specific performance of an oral contract to convey real estate when there was no evidence to show actual, open, and absolute possession sufficient to take the contract out of the statute of frauds under the doctrine of part performance.

I. Dead Man's Statute

Redith contends that the court erred in admitting Jack's testimony regarding conversations he had with his father prior to his father's death on September 18, 1972, because the testimony violated I.C. 34-1-14-7, one of Indiana's so-called dead man's statutes. 1 On the other hand, Jack argues that the statute is inapplicable because his suit against his mother is not a suit against an heir or devisee of a deceased ancestor. We hold that the court did not err in admitting the testimony complained of.

In applying the dead man's statute it is necessary to look both to the language of the statute, which in this case has given rise to two interpretations, and to the purpose behind it. As in all cases of statutory construction the statute must first be shown to be ambiguous and then the ambiguities must be construed in such a way as to effect the intent of the legislature. Economy Oil Corp. v. Indiana Department of State Revenue, (1974) 162 Ind.App. 658, 321 N.E.2d 215. Moreover, since the statute in this case established an exception to the general rule of the competency of parties to testify, it must be construed strictly to "apply only to such cases as the wording of the provisions manifestly intended, and, unless the wording of the particular provision embraces the exception its application will not be extended." 30 I.L.E. Witnesses § 41 (1960). See also Sloan v. Sloan, (1898) 21 Ind.App. 315, 52 N.E. 413; Spurgeon v. Olinger, (1917) 64 Ind.App. 176, 115 N.E. 680.

Indiana Code 34-1-14-7 reads as follows:

"In all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to, or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor." (Acts 1881 (Spec.Sess.), ch. 38, § 277, p. 240.)

In order that the statute be applicable, the action must be first and foremost "by or against an heir or devisee as such." 30 I.L.E. Witnesses § 43 (1960). Redith, of course, contends that she, as a widow, is an heir of her deceased husband, while Jack insists that Redith cannot be considered an heir of the property which is the subject of this law suit. Neither party argues that Jack is an heir or devisee in this action. Clearly, this suit by a son against his mother for specific performance of a contract for the sale of real estate which she holds in fee could not be a suit by an heir, since a living person has no heirs, but could be only a suit against an heir. Furthermore, this suit could be brought now only against Redith since only she has legal title to the real estate. Thus, ambiguity in the statute arises in the interpretation of the word "heir" and as to whether or not Redith is an heir for purposes of the statute.

Indiana case law holds that I.C. 34-1-14-7 applies where the decedent held the property at the time of death and where the party took title to the property in controversy under either the laws of intestacy as an heir or the will as a devisee or legatee. Snyder v. Frank, (1913) 53 Ind.App. 301, 101 N.E. 684. It has also been held that a widow is an "heir" for purposes of the statute if she gains an interest in her spouse's property pursuant either to his will or to the statutes of intestacy. Peacock v. Albin, (187...

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