Tuell v. Homann

• Decision Date: 22 April 1915
• Docket Number: No. 8556.,8556.
• Citation: 108 N.E. 596,60 Ind.App. 285
• Parties: TUELL v. HOMANN et al.
• Court: Indiana Appellate Court

60 Ind.App. 285

108 N.E. 596

TUELL

v.HOMANN et al.

No. 8556.

Appellate Court of Indiana, Division No. 2.

April 22, 1915.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridewell, Judge.

Actions by Ida Tuell against George Homann and another, and by George Homann and another against Ida Tuell and husband, which were consolidated for trial. From a judgment for George Homann and another in each action, Ida Tuell appeals. Affirmed.

John W. Lindley, of Sullivan, for appellant. Charles D. Hunt and Gilbert W. Gambill, both of Sullivan, for appellees.

IBACH, J.

On September 9, 1911, appellant filed her suit against appellee George Homann to recover from him certain lands occupied by him in Sullivan county, Ind., and to quiet her title thereto. Appellee George Homann filed his answer in general denial, also a cross-complaint for specific performance. Appellant then filed answers of general denial to the cross-complaint. On September 18, 1911, appellees filed their suit against appellant and her husband for the specific performance of a contract, entered into by all the parties, wherein it is averred that appellant agreed to furnish $1,000 and the appellees any necessary remaining sum, all of which was to be used for purchasing a home for appellees on certain conditions, which were to be performed by appellees, but when the purchase was concluded the paper title to the lands so purchased was taken in the name of appellant in violation of her said agreement. The prayer was that the land in controversy be ordered conveyed to appellees by appellant and her husband, or, upon their refusal so to do, that a commissioner be appointed to make such conveyance. Summons was not issued in this cause, however, until October 2, 1911.

Later appellant and her husband filed answer in general denial to the complaint, and appellant alone filed her cross-complaint, in which was averred substantially the facts alleged in her original complaint. An answer of general denial on the part of appellees closed the issues, and by order of the Sullivan circuit court both causes were consolidated, and were tried by the court, a special finding of facts made, and conclusions of law stated thereon. Judgment was rendered on the conclusions of law in favor of appellees, and that appellant execute to appellees a good and sufficient deed of conveyance for the lands in controversy within 30 days, and upon her failure so to do that the commissioner appointed execute the same; and the court further found for Robert S. Tuell, and gave judgment against appellees for his costs. Appellant excepted to each conclusion of law separately and severally. Each of appellant's first three assignments of error challenges the sufficiency of each paragraph of appellees' complaint and cross-complaint, and, since the material averments in each are the same, they may be considered together.

[1] These pleadings are challenged for the first time by a motion in arrest of judgment, and when so questioned they will be sustained, if facts are averred therein sufficient to authorize the rendition of a valid judgment thereon. The rule has often been stated substantially as follows: Before the motion in arrest of judgment can prevail, some material averment essential to the cause of action must be entirely omitted from the complaint or cross-complaint, as the case may be. Alexander v. Alexander, 140 Ind. 555, 38 N. E. 855;Coulter v. Bradley, 30 Ind. App. 421, 66 N. E. 184. It will be unnecessary to set out the averments of the pleadings assailed, or to discuss them independently, as a consideration of the special finding of facts and conclusions of law, with proper exceptions thereto, will necessarily determine the same questions. Timmonds v. Taylor, 48 Ind. App. 531, 96 N. E. 331;Goodwine v. Cadwallader, 158 Ind. 202, 205, 61 N. E. 939.

Briefly stated, the facts found by the court are as follows:

Ida Tuell is the mother of Bessie J. Homann, and in May, 1904, Ida married Robert S. Tuell, and at that time all the parties were living in the state of Illinois. In November, 1904, George W. Homann married said Bessie, and in the latter part of that year Mr. and Mrs. Tuell moved to Sullivan county, Ind., where they have since resided. Before moving to Indiana, appellant entreated her daughter to move with her and also live in Indiana, and importuned both her daughter and George Homann, her daughter's husband, to dispose of their farm and home in Illinois, and locate near her in Indiana, and promised that, on condition they would leave their home and forty-acre farm and join her in Indiana, she would furnish $1,000 to be put in land in Sullivan county, Ind., to be their property, and would have the deed of conveyance made to them. Pursuant to such proposition the Homanns came to Sullivan county, Ind., and George Homann and Robert S. Tuell, acting on the instructions of appellant, selected a tract of land, and it was then agreed that this land should be purchased for $1,100; appellant agreeing to pay $1,000 on the purchase price, and George Homann agreeing to pay the balance. This land is the N. 1/2 of the S. W. 1/4 of the N. W. 1/4 of section 33, township 6 N., of range 9 W., in Sullivan county, Ind. After the land was selected, the Homanns returned to Illinois, sold their real estate and part of their personal property, and in February, 1905, moved to Indiana, and took possession of the real estate in suit, at the request of appellant and pursuant to their agreement, and have resided on it ever since, and have made lasting and valuable improvements thereon, including the building of a barn, with the full knowledge and consent of appellant.

While the Homanns were in Illinois, appellant had paid $1,100 for the land, $1,000 furnished by herself and $100 by the Homanns, and procured a deed to the same to be made to herself, rather than the Homanns, without their knowledge and consent. When they took possession of the land, appellees understood and believed that the deed of conveyance was made to them as grantees, and when they learned that appellant had been named as grantee they were informed by her, and given to understand, that the real estate did in fact belong to them, and she allowed and permitted them to make valuable and lasting improvements thereon, with the full understanding and belief on their part that the said real estate did belong to them. On September 17, 1911, appellant brought suit against George Homann for possession, and before bringing the suit she repudiated the contract and served notice on him to vacate. The deed to appellant was made on February 5, 1905, and recorded on February 16, 1905. The Homanns learned for the first time in March, 1905, that the title to the land had been taken in the name of appellant, and they knew this when the improvements mentioned were made, and...