62 Ind. App. 382 | Ind. Ct. App. | 1916
Appellant, Harry W. Osterhaus, brought suit against appellees, Dená and Jacob W. Creviston etal.,for partition of thirty acres pf real estate in Huntington County, Indiana. In substance it was alleged that, on February 3, 1913,
Issues were joined on the complaint by answer in general denial of all the defendants and by special paragraph of answer by Dena and Jacob W. • Creviston. In their special answer it was alleged, in substance, that in 1908 said Harry Osterhaus became the owner in fee simple of the real estate in controversy, and that he gave it to appellees, Dena and Jacob W. Creviston; that in pursuance of such gift they moved upon said land, took full and absolute possession thereof and made valuable and lasting improvements thereon by erecting a house and barn, clearing, fencing and ditching the land and by otherwise improving the same, which improvements were of the value of $8,000; that they made said improvements and held possession of the land as the owners thereof, all with the knowledge and consent of said Harry Osterhaus.'
Appellees also filed a cross-complaint in two paragraphs, in the first of which they alleged that they were the owners in fee simple of the real estate and asked to have their title quieted. In the second paragraph, they alleged in substance that Harry Osterhaus, deceased, was in his lifetime the owner of said real estate; that while such owner he agreed verbally with cross-complainants that he would convey and give said real estate to them in consideration of love and affection, and in consideration that they would give him a home and
Objection is urged to appellant’s briefs that under the rules of the court no questions are presented for decision. One of the errors assigned is the overruling of appellant’s motion for a new trial. The brief is justly subject to some criticism but evidences a good-faith effort and a substantial compliance with the rules sufficient to present the question arising on the motion for a new trial of the alleged insufficiency of the evidence to sustain the verdict. Palmer v. Beall (1915), 60 Ind. App. 208, 110 N. E. 218.
The point is especially urged that there is no evidence to support the allegation of a parol gift of the land to appellees by the decedent, Harry Osterhaus. In support of this contention appellant says there is no proof whatever that Harry Osterhause ever said to the appellees, or either of them, that he intended to give them the property in question, nor that he ever made any such statement in their presence or hearing, or to any other person
The evidence sustains the verdict. No intervening error has been presented which warrants a reversal of the judgment. The case seems tc have been fairly tried and a correct result reached.
Judgment affirmed.
Note. — Reported in 111 N. E. 634. Specific performance, right to, as established by part performance, 53 Am. Dec. 539, 541; 36 Cyc 653, 681. Parol gift of real estate, evidence necessary to establish, 9 L. R. A. (N. S.) 508; 20 Cyc 1222; 21 Ann. Cas. 289.