Triplett v. Triplett

• Decision Date: 12 November 1963
• Docket Number: No. 19708,No. 2,19708,2
• Citation: 135 Ind.App. 302,193 N.E.2d 662
• Parties: Ellsworth C. TRIPLETT, Marilyn Triplett, Marylin Triplett, Appellants, v. Charles H. TRIPLETT, Hugh L. Triplett, Nona Triplett, Appellees
• Court: Indiana Appellate Court

Page 662

193 N.E.2d 662

135 Ind.App. 302

Ellsworth C. TRIPLETT, Marilyn Triplett, Marylin Triplett, Appellants, v. Charles H. TRIPLETT, Hugh L. Triplett, Nona Triplett, Appellees.

No. 19708.

Appellate Court of Indiana, Division No. 2.

Nov. 12, 1963.

Phyllis R. Gratz, Auburn, Ellsworth C. Triplett, Washington, D. C., for appellants.

E. W. Atkinson, Auburn, C. E. McClintock, Waterloo, for appellees.

MOTE, Chief Justice.

This is an appeal from a judgment quieting the title to a certain tract of real estate, on a complaint by appellees which, omitting the formal parts, alleges as follows:

'Plaintiff alleges that he is the owner, and in possession of the following described real estate situate in DeKalb County, in the State of Indiana, towit:

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'2. That plaintiff acquired title to said real estate on the 14th day of April, 1939; that plaintiff has been the owner of said real estate continuously since said date, during all of which period of time plaintiff has been in actual, visible, open, notorious, adverse, exclusive possession thereof, under his claim of ownership, hostile and continuous, and that plaintiff has exercised dominion over said real estate for more than twenty years.

'That during all of said period of time the plaintiff has paid the taxes on said real estate; that he has made lasting and valuable improvements thereon and thereto.

'3. That the defendants and each of them claim to have some interest in, or lien upon, said real estate adverse to this plaintiff, all of which claims are unfounded and without right, and constitute a cloud upon plaintiff's title thereto.

'WHEREFORE plaintiff sues, and prays that his title to said real estate be quieted and forever set at rest as against the defendants to this action and each of them, and all persons or corporations claiming, by, under or through them, and for all other proper relief.'

Upon filing of the complaint, two defendants named in the complaint, to-wit: Ellsworth C. Triplett and Marilyn Triplett, moved for an order requiring appellant to furnish them an abstract of title to the real estate described in the complaint, which was overruled.

Said defendants then filed a motion to make the complaint more specific, to require plaintiff to set forth therein and to disclose whether appellant claimed legal title or equitable title to said real estate, which said motion likewise was overruled.

Thereafter, said defendants filed an answer in two paragraphs, the first of which admitted a claim to the real estate but denied all other allegations of the complaint. The second paragraph, omitting the formal parts, is as follows:

'1. That on the 2nd day of February, A.D. 1901, the defendant's grandparents, Charles H. Triplett and Sarah Triplett, his wife, conveyed various parcels of their real estate to their three (3) children, namely, James M. Triplett, Myran D. Triplett, and Elsworth A. Triplett.

'2. On February 2, 1901, the said Charles H. Triplett and Sarah Triplett, conveyed by warranty deed the real estate described in the Plaintiff's complaint and which said real estate is in DeKalb County, Indiana, and is described as follows:

* * *

* * *

'3. That said deed was recorded on February 2, 1901, in the record of Deeds of DeKalb County, Indiana, and being in Volume 61, on page 296 thereof.

'4. That the grantees in said deed were designated as El sworth A. Triplet, life estate provided that if at anytime the creditors of the life tenant shall attempt to sell by legal process the life estate granted, then in that event the life estate shall become void and the same shall go to the two brothers, James M. Triplett and Myron D. Triplett. The remainder fee simple title was to vest in the children of the life tenant, Elsworth A. Triplett, or their immediate descendants or if Elsworth A. Triplett shall die without issue of his body or their immediate descendants then the remainder was to go to James M. Triplett and Myron D. Triplett, during their lives and to the survivor of them.

'5. Thereafter on March 16, 1901, El sworth A. Triplett, Myron D. Triplett and James M. Triplett, children of the grantors, entered into a written agreement recorded in Miscellaneous records in Recorder's Office of DeKalb County, Indiana, whereby each party agreed that if any of the conditions of said deeds were broken and the life tenant lost their life estate under the respective conveyances, and if said life estate fell to the life tenant's brothers or one of them, then in that event, the brother or brothers would hold the life estate in trust for the support of the one from whom it was taken during his respective life.

'6. James M. Triplett died on or about the year 1936.

'7. The said Myron D. Triplett is the father of the plaintiff herein, residing RFD, Angola, Indiana, and is a real party in interest and a necessary party to this action.

'8. That on the 14th day of April, 1939, the alleged date that the Plaintiff claimed to have received title to said real estate, the defendant, Ellsworth C. Triplett was a minor child 14 years of age.

'9. Thereafter, the said defendant's father, Ellsworth A. Triplett, died on September 17, 1942, leaving surviving him three children, namely, Orlena Miser, adult daughter, Hugh L. Triplett, adult son, and Ellsworth C. Triplett, minor son.

'10. That by reason of the facts above stated, the plaintiff's cause of action did not accrue within twenty (20) years before the commencement of this action.

'Wherefore, the defendants asks judgment for costs, that the plaintiff take nothing by his complaint and that Myran D. Triplett be made a party to this cause of action.',

and a cross complaint in two paragraphs, and against one Myron Triplett and the appellee, which alleged that appellant was fee simple owner of an undivided one-third of the realty in question and asked (1) that his title be quieted, (2) for partition, and (3) for an accounting for rents and profits. Plaintiff filed answer to the cross complaint as follows:

'The plaintiff for answer to the first paragraph of cross-complaint of the defendant, Ellsworth C. Triplett, says that he specifically denies each and every allegation contained in rhetorical paragraph one of said paragraph of cross-complaint.

'2. That the plaintiff admits that he is asserting an interest in the real estate described in the cross complaint; asserts that he is the absolute owner thereof, and denies that his claim is wholly unfounded and without right.

'Wherefore plaintiff demands judgment.

'The plaintiff for answer to the second paragraph of the defendant, Ellsworth C. Triplett's cross complaint says: That he specifically denies each and every allegation contained in rhetorical paragraph one of said second paragraph of cross complaint.

'The plaintiff for answer to the second rhetorical paragraph of defendant's cross-complaint says that he specifically denies that said cross complainant has any interest in and to the real estate described in said cross complaint.

'For answer to the third rhetorical paragraph of said cross complainant's cross-complaint, plaintiff says that he has no knowledge of the averments of the said third rhetorical paragraph of said cross complaint.

'That the plaintiff for answer to the fourth paragraph of said cross complaint of said defendant and cross complainant Ellsworth C. Triplett says that he admits that since 1942 the plaintiff has been in possession of the property described in said cross complaint, but denies that Myron D. Triplett has been in possession thereof or had any interest therein.

'That the plaintiff admits the allegations contained in rhetorical paragraph No. 5 of said cross complaint.

'Wherefore plaintiff demands judgment.',

and to close the issues, a reply to the second paragraph of defendant's answer was filed which admitted rhetorical paragraphs 1, 2, 3, and 9; denied rhetorical paragraphs 4, 5 and 10; and alleged lack of knowledge as to the remaining second paragraph of answer.

Defendants Hugh L. Triplett and Verna Triplett did not appear in the action.

Said defendants, under the provisions of Section 2-1028, Burns' Indiana Statutes Annotated, propounded ninety-one (91) interrogatories and on due motion, all interrogatories but Numbers 2, 3, 29, 32, 90 and 91 were stricken out as being irrelevant to the proceeding. Said defendants also filed eleven (11) interrogatories addressed to Myron D. Triplett, named in the cross complaint, who filed a disclaimer of interest.

Before commencement of the trial, before the court without a jury, on the issues thus formed, appellants requested written special findings of fact and conclusions of law. At the trial's close, and the parties having submitted their proposed special findings of facts and conclusions of law, the court found the facts and stated his conclusions of law. Finding that the law was with the plaintiff, appellee, and against defendants, appellants herein, the court entered judgment quieting the title to the subject real estate in appellee.

Motion for new trial seasonably was filed and, omitting the formal parts, together with memorandum in support thereof, is as follows:

'Come now the Defendants Ellsworth C. Triplett and Marylin Triplett and move the Court for a new trial of the above entitled cause under the provisions of Burns Annotated Statutes 2-2401 in that the decision rendered by the Court is not substained by the evidence and is contrary to law.

'Specifically the Defendants object to Special Finding of Fact No. 3 of Part One, in that said Finding Fact that the description contained in the certificate of purchase and the tax deed was sufficient to effectively convey title to the subject real estate is contrary to and not sustained by the evidence. Additionally Defendants object to all conclusions of law as contrary to the law now in existence in the State of Indiana.

'This motion is based upon the contents of the description in the tax deed upon subject real estate and now a part of the...