Webster v. Adams

• Decision Date: 30 January 1923
• Docket Number: No. 11369.,11369.
• Citation: 79 Ind.App. 261,137 N.E. 883
• Parties: WEBSTER et ux. v. ADAMS.
• Court: Indiana Appellate Court

79 Ind.App. 261

137 N.E. 883

WEBSTER et ux.

v.ADAMS.

No. 11369.

Appellate Court of Indiana, Division No. 1.

Jan. 30, 1923.

Appeal from Circuit Court, Parke County; Henry Daniels, Judge.

Suit by John Adams against Samuel Webster and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Frank R. Miller, of Terre Haute, Charles B. Swayne, of Clinton, and Wm. H. Beeler, of Terre Haute, for appellants.

J. M. Johns, of Rockville, for appellee.

REMY, J.

Suit by appellee against appellant to cancel deed for fraud. Complaint in two paragraphs. The material averments of second paragraph are: On November 16, 1918, appellee was the owner in fee, and in possession, of certain real estate of the value of $1,000; was a man 66 years of age, and wholly inexperienced in business matters, having for more than 25 years been a railroad section hand; that he had no family, his wife, who had borne him no children, having recently died; “that the loss of his wife and only companion preyed upon his mind,” and that, “by reason of his advanced age, enfeebled condition, and the sorrow and worry and distress of mind over the decease of his wife,” he was not “competent to transact business of any kind; that, in addition to said worry, distress of body and mind, as aforesaid, he was sleepless at night, very nervous, and debilitated generally in body and mind, and by reason of all said facts and conditions was incapable of comprehending the nature and import of general business, and especially any disposition of his real estate;” that appellants were husband and wife, lived just across the street from the home of appellee, and were related to appellee by marriage, in that appellant Mary Webster was a sister of appellee's deceased wife; that because of the relationship appellants and appellee were much together, and, as appellants well knew, appellee reposed the utmost confidence in them; “that on said date, and while so incapacitated, as aforesaid,” appellants “unduly, purposely, and willfully exercised their confidential and relation influence over him, well knowing” his said mental and physical condition, and did “purposely and designedly, and with fraudulent and false purpose of cheating and defrauding” appellee out of his real estate, “falsely and fraudulently represent” to him that, if he would by deed convey to them the fee of his real estate, retaining in himself a life estate, they “would care for him in sickness and in health, do his housework, wash for him, nurse him, advise and assist him about his affairs and work, and in every way administer to his every want;” that appellee, imposing the fullest confidence in the words and promises of appellants, and believing that they intended to, and would, carry out their agreements and promises, executed and delivered to appellants as tenants by entireties a deed for the fee of his real estate; that all the acts, promises, and agreements made to appellee “were made for the false and fraudulent purpose of securing from him” the deed, and that appellants “at no time intended to perform any of said promises as made to him, by which they obtained the title” to his real estate, “or to pay him any valuable consideration therefor, but that by deceit, false and fraudulent acts, as aforesaid, so obtained from him” the deed; that after they so procured the deed they wholly failed to keep and perform their promises and agreements, although requested so to do; and that, before the commencement of this suit, appellee demanded of appellants that they reconvey the real estate to him, which they refused to do.

A motion to strike out parts of the complaint was by the trial court overruled, as were separate demurrers to each paragraph of complaint. Appellants' answer consisted of a general denial, and a special answer which was but an argumentative denial. Trial by the court resulted in a finding and decree for appellee.

Alleged errors properly assigned, and not waived, are: (1) Overruling demurrer to first paragraph of complaint; (2) overruling demurrer to second paragraph of complaint; and (3) overruling motion for new trial. See Slifer v. Williard (Ind. App.) 131 N. E. 87. The only objection to the second paragraph of complaint which has been presented by appellants in their memorandum filed with their demurrer is that the averments thereof are insufficient to charge fraud. It is contended that the recitals in the complaint purporting to charge fraud are only as to promises to be performed in the future, and that such promises do not constitute fraud.

[1][2][3] It is, of course, the general rule that fraud cannot be predicated upon statements promissory in their nature, and relating to future action. Burt v. Bowles, 69 Ind. 1. Representations upon which fraud can be predicated must be of an existing fact. Fouty v. Fouty, 34 Ind. 433. An...