Hay v. McDaniel

• Decision Date: 28 May 1901
• Citation: 26 Ind.App. 683,60 N.E. 729
• Parties: HAY et al. v. McDANIEL et al.
• Court: Indiana Appellate Court

26 Ind.App. 683

60 N.E. 729

HAY et al.

v.McDANIEL et al.

Appellate Court of Indiana.

May 28, 1901.

Appeal from circuit court, Clark county; W. C. Utz, Special Judge.

Action by Winfield S. McDaniel, Jr., and others against Lottie M. Hay and others. From an order overruling a demurrer to the complaint, defendants appeal. Reversed.

J. G. Howard, for appellants. L. A. Douglass, for appellees.

ROBY, J.

Appellees' complaint avers ownership of two certain tracts of real estate in Jeffersonville by appellees and appellant Charles S. Hay in equal shares as tenants in common, subject to an estate in Lottie M. Hay for the life of one Richard McDaniel. That said real estate is improved property, one tract having upon it a two-story brick business building and dwelling house combined, and the other one a two-story frame dwelling house. That the life tenant had leased and rented the property for a long time, and that the same was, and had been for many months, occupied by tenants at a good rental, aggregating $32 per month, which sum said appellee has been receiving as such rent for as much as two years last past. “That she has failed and neglected to keep up and maintain said property in good repair, and has suffered taxes and liens to accumulate and remain unpaid upon the same, although she has had and collected more than sufficient money from said property to pay the same, to wit, that there has accumulated state and county taxes to the amount of $103.73, and city taxes to the amount of $103. That the same are delinquent, and costs and damages and the interest has and is accumulating upon the same. That upon the first-described tract there have been certain street and sewer improvements to the amount of $100, which is a lien upon the property, and is drawing interest at six per cent. from August 8, 1898, and attorney's fees thereon. That said property and the fee thereof may be sold to pay said taxes and said improvement liens, to the great damage and loss of plaintiff and to his said title and interest in the fee of said real estate. That she has also permitted said property to become out of repair, in this: that said brick house is in great need of painting to preserve the building; that the joists in the lower floor thereof have rotted, and the floor has fallen in and down, and should be replaced with a new one, with new joists; the inner woodwork of said house needs general fixing up and repair; the said frame house is out of repair throughout, the roof, floors, windows, and doors all needing general overhauling, and a portion of the fences about said place are fallen down and many places about the said house are rotted, and need replacing. That by said neglect the said property is in danger of being materially injured, and that ample justice between the parties hereto and protection to the rights of the plaintiff, as owner of the interest in the fee of said property, require the appointment of a receiver to take charge of said property, collect the rents, and apply the same to the payment of said taxes and liens; and that the said property be placed in repair and maintained. Plaintiff says that he is a minor, and under the age of 21 years, and he brings this action by his next friend, Winfield S. McDaniel, Sr. Wherefore plaintiff prays an order of court that a receiver be appointed to take charge of the said property, collect the said rents, pay the said taxes and liens thereon, place the said property in repair, maintain the same in said condition, and for such other orders in the premises as may be just and equitable, and for all other proper relief.” To this complaint a demurrer for want of facts was overruled, an exception taken, and the action of the court therein assigned as error. An answer in general denial was filed with an affirmative paragraph, which is not important to the questions presented to this court. The finding was for appellee as follows: “That the material allegations of the plaintiff's petition herein are true, and a receiver should be appointed to take charge of the real estate and property described in the petition, collect the rents thereof, pay the taxes and any and all liens thereon, and to place and maintain the said property in repair, and that plaintiff ought to recover of the defendant Lottie M. Hay his costs herein laid out and expended. It is therefore ordered, adjudged, and decreed by the court that a receiver be, and the same is now, appointed to take charge of the said property described in the complaint, to wit, the real estate in the county of Clark, in the state of Indiana, and being in the city of Jeffersonville, and described as follows, to wit: [here follows description], * * * and of the improvements thereon; that such receiver collect the rents and income of said property, and apply the same as follows, to wit: First, to the payment of all taxes and liens thereon, that he place the same in proper and reasonable repair, and maintain the same in proper and reasonable repair.” Appellants' motion for a new trial, setting up that the finding and judgment were not sustained by the evidence, and were contrary to law, was overruled, an exception reserved, and such action of the court assigned as error.

The primary question in the case is as to the appellees' right to maintain an action for the sole purpose of securing the appointment of a receiver. If this may not be done, the complaint is bad, and the demurrer to it should have been sustained. A receiver is an indifferent person between the parties to a cause, appointed by ...