176 Ind. 400 | Ind. | 1911
This suit was commenced by appellee to quiet his title to certain lands situated in Pulaski county, Indiana. The complaint is in two paragraphs. The first is in the usual form for quieting title under §1116 Burns 1908, §1070 R. S. 1881. The second paragraph alleges facts by which plaintiff claims an equitable ownership in the lands therein described. The relief demanded by each paragraph is that the title to the lands be quieted, and for all other and proper relief, and that defendant be enjoined from disposing of said lands. Defendant answered the complaint by a general denial. She also filed a cross-complaint, by which she demanded that her title be quieted. Upon the pleadings in question the issues were joined, and the cause was submitted to the court for trial. The court found that under an agreement between plaintiff and defendant a resultant trust was created in the real estate in controversy; that defendant, as trustee, held an undivided half thereof in trust for plaintiff, and owned the other undivided half herself. Upon the finding the court entered a decree that plaintiff and defendant are the owners of the real estate in controversy; that defendant holds in her own name, in trust for plaintiff, the title to an undivided half of said real estate, and that such trust should be and is hereby declared;
After the entry of the decree, defendant filed a motion for a new trial as of right and an undertaking as required by the statute, which undertaking was approved by the court. The court overruled defendant’s motion for a new trial as of right, to which she excepted. She appeals, and the only error assigned is that the court erred in overruling her motion for a new trial as of right.
"While the decree in the case at bar does not in express language order that the title to the land in dispute be quieted, still the effect of the decree, impliedly at least, is to quiet the title of each party to the premises as against each other. Miller v. Evansville Nat. Bank (1884), 99 Ind. 272.
Appellant, under the facts in this case, was legally entitled to a new trial as of right, and the court could not exercise any discretion in denying the application. Hipes v. Doherty (1911), ante, 379.
For the error of the court in denying appellant a new trial as of right, the judgment below is reversed, and the cause remanded, with instructions to the lower court to sustain the application for a new trial a# of right.