62 Ind. App. 364 | Ind. Ct. App. | 1915
This was an action upon a complaint filed by appellee against appellants. The cause was tried upon the second paragraph of complaint. In the language of appellants’ counsel in his brief, this was an action to set aside a contract for sale of certain real estate, to set aside certain deeds of appellee to appellants as fraudulent and void, and to quiet the title to the real estate embraced in said contract and deeds in, appellee as against appellants. Separate demurrers were filed by Harvey H. Brown and Leila A. Brown on the ground that the second paragraph of complaint did not state facts sufficient to constitute a cause of action against either of appellants. The demurrers were overruled and exceptions properly saved. Answers in general denial were filed by the Browns. Appellant Jouvenat was defaulted. The cause was first tried in the Lake Superior Court, where the finding and judgment was against appellants. They then availed themselves of the provisions of the statute entitling them to a new trial as of right, and the cause was taken on a change of venue to the Porter Superior Court where a trial again resulted in a judgment against appellants, from which this appeal is taken.
The complaint alleges, in substance, that on September 1, 1904, appellee Josephine E. Young was the owner of certain real estate in Norcott’s addition to Indiana City,- Indiana; that on said date she entered into an agreement with appellant Harvey H. Brown, in which she agreed to convey to him or to his order on date of said contract, blocks, 14, 20 and 21, and block 13 except lot 3 therein, described in the complaint, by warranty deed, subject to a pro rata share of a mortgage incumbrance of $2,000, together with interest at six per cent, for two years, which pro rata share of said
Upon request tbe court found tbe facts specially. Said findings cover nineteen printed pages of appellants’ brief. No good purpose could be served by setting them out in detail. It is sufficient to say tbat they find all tbe material allegations of tbe complaint to be true, upon which tbe court stated conclusions of law as follows: Tbat tbe law is with appellee and she should have ber title quieted to all of tbe real estate described' in tbe complaint; tbat tbe misrepresentations of appellant Harvey H. Brown were a fraud upon appellee; tbat said contract entered into between appellee and appellant Brown was in fraud of appellee and fraudulent, and said deeds to appellants Harvey H. Brown, Leila A. Brown and Jouvenat as trustee, were eaeb and all in fraud of appellee, and said contract and deeds should be set aside for fraud and declared null and void and of no effect. Judgment was rendered accordingly.
Section 350 Burns 1914, §345 R. S. 1881, reads as follows: “The judgment upon overrruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined. . * * *” See also §§407, 700 Burns 1914, §§398, 658 R. S. 1881.
Note. — Reported in 110 N. E. 562. See under (2), (3), (4) 9 C. J. 1236,1242, 1240; 6 Cyc 329, 300; 50Am.Dec.672; (7) 38Cye 1978.