53 Ind. App. 605 | Ind. Ct. App. | 1913
— This was an action by appellant against appellees. The complaint was in four paragraphs. The first involves the title to certain real estate in Clinton County, Indiana, and seeks to have a deed executed by appellant to Luley C. Frazier set aside. The second alleges a contract lor care and support between appellant and Luley C. Frazier, as consideration for the conveyance of the real estate described, and a breach of the contract by said Luley C. Frazier, alleging damages on account of such breach, asking for judgment and that certain sums claimed to have been expended by him be declared a specific lien on the real estate in question. The third paragraph is substantially the same as the second, except more elaborate in its statement of detail, alleging the payment of certain sums of money for taxes, repairs, mortgage debt, etc., asking for an accounting and that the amount due be declared a lien on said real estate, that said lien be foreclosed and said premises sold in satisfaction thereof, etc. The fourth paragraph is not clear in its theory, and in view of the conclusion we have reached, it is not important. Demurrers to the third and fourth paragraphs were overruled. Appellees answered by a general denial to each paragraph. Cross-complaint in ejectment in two paragraphs by appellee Luley C. Frazier, which appellant answered by a general denial. Trial by the court, finding and judgment for appellees on the issues joined on the complaint, and for appellee Luley C. Frazier on the issue joined on the cross-complaint. Appellant’s motion for a new trial as of right was overruled, and this ruling is the only error assigned. It is insisted by appellant that under §1110 Burns 1908, §1064 R. S. 1881, he is entitled to a new trial as of right. This section reads as follows: “The court rendering the judgment, on application made within one year thereafter by the party against whom judgment is rendered, his heirs, assigns, or representatives, and on the applicant giving an undertaking, with surety to be approved by the court or
Appellees insist that the record does not show that a sufficient bond or any bond was filed, and that inasmuch as the statute requires the filing of a bond, it must be disclosed by the record, else this court will not disturb the ruling of the lower court, citing Carpenter v. Willard Library (1901), 26 Ind. App. 619, 622, 60 N. E. 365; §1110, supra. We are inclined to think this is a correct construction of the law, but prefer to pass upon the merits of this case. Appellees contend that appellant has stated in his complaint two or more substantive causes of action, which proceeded to judgment, and that the second and third paragraph of complaint are based on matters for which a new trial as of right cannot be allowed. It is undisputed that the first paragraph of the complaint involves the title to real estate, and under it appellant was entitled to a new trial as of right. Looking to the second paragraph, it appears, in substance, that on March 8, 1902, appellant, an unmarried man, by his quitclaim deed released and quitclaimed to appellee Luley C. Frazier real estate in Clinton County described therein. The consideration named was $500, but in truth and in fact no consideration in money was paid. Appellant claims to have been the owner of said real estate at the time of the conveyance, and for a long time prior thereto. It is alleged that Luley C. Frazier, in consideration of said release and quitclaim, agreed that appellant should continue to live on said real estate, and have his home in the dwelling house thereon; that she would board him, do his cooking and housekeeping, and provide and care for him for and during his natural life. This agreement
The third paragraph alleges substantially the same facts as the second, except more in detail. In addition, it is alleged, in substance, that prior to and at the time of the conveyance Luley C. Frazier was wholly insolvent, and from then until the breach of the contract, was without means and failed and neglected to pay certain liens, charges, and indebtedness against said real estate, including taxes, principal and interest of a mortgage debt, and the cost of necessary repairs and improvements made thereon; that appel
Note. — Reported in 100 N. E. 770. See, also, under (1, 3) 29 Cyc. 1037; (2) 29 Cyc. 1035.