The Sunnyside Coal And Coke Company v. Reitz

• Decision Date: 29 January 1895
• Docket Number: 1,379
• Citation: 39 N.E. 541,14 Ind.App. 478
• Parties: THE SUNNYSIDE COAL AND COKE COMPANY v. REITZ ET AL
• Court: Indiana Appellate Court

39 N.E. 541

14 Ind.App. 478

THE SUNNYSIDE COAL AND COKE COMPANY v. REITZ ET AL

No. 1,379

Court of Appeals of Indiana

January 29, 1895

Reported at: 14 Ind.App. 478 at 487.

From the Vanderburg Circuit Court.

Judgment affirmed.

A Dyer, A. Gilchrist and C. A. DeBruler, for appellant.

J. S Buchanan, C. Buchanan and S. R. Hornbrook, for appellee.

OPINION

LOTZ, J.

This is an appeal from a judgment of the superior court of Vanderburg county rendered against the appellant, upon the verdict of a jury, for the sum of $ 2,750.

The action was instituted by the appellee Clemmens Reitz, against the appellant and Bertha Reitz. The complaint is in two paragraphs. In the first, the appellee avers that he is and has been for eight years last past, the owner in fee and in possession of a part of block eleven and a part of block sixteen, Lamasco, now city of Evansville; that so far as the real estate situate in block eleven is concerned, the same since the 11th day of June, 1883, has belonged to him, although the paper title thereto was for a time, for his convenience, and for the convenience of his business, in his wife, the defendant Bertha Reitz; that he has been in the sole and exclusive possession thereof ever since that date; that he bought it, paid for it, paid taxes upon it, improved it, and has occupied it solely, notoriously and to the exclusion of all others, and owned it; that his wife, the said Bertha, never had any interest in or to the same; that the paper title she held thereto was for the plaintiff and his benefit; that the said Bertha was willing to submit herself to the jurisdiction of the court as a party, and consent that a judgment might be rendered against her, barring her forever in any action against the Sunnyside Coal and Coke Company for trespass upon said lands; that on the first day of January, 1887, and on divers other dates between that and the commencement of this action the Sunnyside Coal and Coke Company wrongfully and unlawfully and without leave entered the premises of the plaintiff and dug, mined and removed eight thousand tons of bituminous coal of the value of $ 10,000.00, of which coal the plaintiff was the owner, and in possession, and converted and disposed of the same to its own use, and otherwise injured said premises to the plaintiff's damage in the sum of $ 10,000.00.

The second paragraph is the same as the first with the exception that it is averred that the trespass was done wrongfully, unlawfully, purposely and maliciously. The appellant answered in denial and specially a continuous license to take coal by an arrangement made with a former owner of the realty. Bertha Reitz filed an answer in which she admitted all the allegations of the complaint to be true so far as the same affected her, and disclaimed any right or title in the real estate, and to any interest in the coal taken therefrom, and consented that judgment might be rendered against her barring and inhibiting her from ever after asserting any rights to the same.

Counsel for appellant have argued several points which they assume contain reversible error, but it is conceded that there are two controlling questions presented by the record: 1. Was the plaintiff entitled to recover for the coal taken during the time the title to the property was in the name of the co-defendant Bertha Reitz? (2) What is the proper measure of damages? The first of these questions was saved by motion to separate, and by motion to strike out parts of the complaint, by objection to the evidence and by an instruction requested to be given to the jury. It seems from the evidence that the major part of the coal was taken while the title to the land was in the name of Bertha Reitz. It is insisted with much earnestness that it was neither averred nor proved that any trust relation existed between Clemmens Reitz and his wife Bertha, because there was no contract or agreement that she was to hold the title in trust; that she was the absolute owner of the property in fee, and that any damage done in removing the coal was a chose in action that accrued to her and did not pass to her grantee upon a conveyance of the land.

If this were an action between Clemmens Reitz and Bertha Reitz to declare and enforce a trust, appellant's position would no doubt be well taken. In the absence of an agreement on the part of Bertha to hold the land in trust, the presumption would be that the conveyance was but a provision made for her by her husband. The statute of frauds would also prevent the enforcement of the trust, as resting in parol. Section 6631, R. S. 1894. While the statute is a bar to the enforcement of parol contracts concerning lands, it does not render such contracts illegal, and the parties may perform them if they think proper. A trust of the kind averred may be shown to have existed, not for the purpose of enforcing it, but for the purpose of showing that it has been fully executed. Moore v. Cottingham, 90 Ind. 239; Hays v. Reger, 102 Ind. 524, 1 N.E. 386.

We are not here called upon to enforce a trust, but to declare the rights of the parties to an executed trust; and for that purpose it is immaterial whether or not the trust was one that could have been enforced by the courts in the first instance. The parties having voluntarily executed the trust as between themselves, their rights are the same as if the trust had been capable of enforcement at its inception. Had the trust been one of the latter kind and voluntarily executed, we apprehend that no question would arise as to the right of Clemmens Reitz to recover for the injury done while the legal title was in another. It is further contended that if the trust relation be admitted the case is then divisible into two actions, one at law to recover damages, and one in equity to establish the trust; that the first is triable by a jury and the latter by the court, and that it was error to submit the whole case to the jury. In this contention we do not concur. The action is one at law to recover damages done to real estate and for severing and converting coal. The trust relation is but an incidental matter. It is more properly a matter of evidence than of pleading. We think it is fairly inferable from the averments that a trust relation existed and there was some evidence tending to sustain it. As to the second question relating to the measure of damages, the court instructed the jury to the effect that if the trespass was committed by mistake or unintentionally the measure of damages would be the value of the coal taken at its market value in the vein, on before severing it from the...