64 Ind. App. 176 | Ind. Ct. App. | 1917
This is an appeal from a judgment in appellee’s- favor, based upon the second of three paragraphs of complaint filed by him in the trial court. The material averments of said second paragraph are, in substance, as follows: Prior to October, 1907, appellee was the owner of a 27%-acre farm in Tipton county and, being then old and feeble and unable to farm, sold said farm for $2,800. Maude Spurgeon, a deceased daughter of appellee, was then living and was the wife of appellant. It was then agreed between appellee and his daughter, Maude, that she should receive said $2,300, the same to be “invested by her in real estate-in Howard county, Indiana, the legal title thereto to be taken in the name of * * * Maude * * * and to be held in trust for plaintiff.” Said agreement was without fraudulent intent on the part of either appellee or his daughter. Pursuant thereto, appellee turned over and deliyered to his daughter $2,300 for the purpose of having the same invested in real estate as above alleged, which sum was thereafter, on October 28, 1907, invested in real estate in Howard county. (Here follows description of 76.75 acres.) Without the knowledge or consent of appellee, the deed for said real estate purchased by the daughter and appellant, her husband, was taken in their joint names and thus remained until December 12, 1912, when Maude died,
The averments of the first paragraph are substantially the same as those of the second, except that it is alleged in the first paragraph that appellee and appellant were the owners in fee simple as tenants in common of said fifty-two-acre tract, .appellee being the owner-of 23/61 thereof, and appellant of 38/61; that appellant is without right asserting title to all of said tract; that the same cannot be divided, etc.
The third paragraph is in the usual form to quiet title to 23/61 of said real estate. Appellant answered by a general denial and also filed a cross-complaint to quiet his title to said fifty-two-acre tract entire.
A demurrer addressed to each paragraph of the complaint was overruled. A trial by the court resulted in a general finding for appellee on his second paragraph of complaint in the sum of $1,674.75, which sum was declared to be a lien on said fifty-two-acre tract of land, inferior and subject to the lien of the Kokomo Trust Company. There was a finding for appellant on said first and third paragraphs of complaint and on his cross-complaint, quieting his title to said fifty-two-acre tract, subject to the lien of appellee as indicated. The
A motion for new trial was overruled. This ruling and the overruling of the demurrer to the second paragraph of complaint, (hereinafter referred to as the complaint) are among the assigned errors, and are alone relied on for reversal.
It is first insisted by appellee that, because of certain suggested infirmities and irregularities appearing in the record and the assignment of errors, no question is presented by the appeal. A discussion of the questions suggested by such contention is rendered unnecessary by the conclusion reached on the merits of the appeal, and for this reason, will not be further noticed. It will be observed that among the facts alleged in said complaint, indicated supra, there is no allegation that appellant had any knowledge of the alleged trust agreement between appellee and his daughter, and it is insisted by appellant, in effect, that so far as said averments show, appellant may have been a .purchaser of said real estate for a valuable consideration without notice of said agreement between appellee and his daughter, and that, for this reason, the- complaint fails to show a right of action against appellant.
Said complaint does not proceed upon the theory that the trust agreement relied on was had between any one other than appellee and his daughter, and hence, under such theory, there could not be a violation of such agreement by any one else, and an allegation of such violation by any one else was not only unnecessary to the sufficiency of the pleading, but, in a sense, would be inconsistent with it. Knowledge of such agreement or
For the reasons indicated, we do not believe that the memorandum here involved points out the objections to the complaint now urged and relied on by appellant with that clearness and certainty contemplated by subdivision 6, §344 Burns 1914, Acts 1911 p. 415, as construed and interpreted by the decisions of the Supreme Court and this court. Stiles v. Hasler (1913), 56 Ind. App. 88, 104 N. E. 878, and cases cited. If the infirmity now urged against the complaint had been specifically and certainly pointed out in the memorandum accompanying appellant’s demurrer thereto, such demurrer probably would have been sustained, with the result that said paragraph would have been amended
The record then shows the following statements of attorneys and court:
Mr. Moon (one of appellee’s attorneys) : “I make this suggestion * * *. You might hear it and strike it out and give us an exception, if the court becomes convinced it is incompetent. We have no testimony by which we can make a case unless we can prove by this man’s testimony. It is a case whereby we are bound to get this evidence into the record or else fail, and if you feel this witness is not competent, then our case fails.” . '
By the court: “I am willing to' make that agreement and give you further time, if you feel that you want to investigate the proposition further, but at the present time I feel it is hardly competent.”
By Mr. Wolf (one of appellant’s attorneys) : “Defendant’s objection goes to all questions to this witness on the ground that he is not a competent witness to anything occurring prior to the death of Maude Spurgeon.”
The court finally overruled the objections to said evidence. In this connection, it should also be stated that the only objection made by appellant to the admission
Whether the instant case falls within the spirit of
In determining whether said land ought to be subjected to said lien, any evidence tending to show that appellant, when he took title to said land, knew of the trust agreement between his wife and her father, under which the father furnished a part of the purchase money investéd therein, was material and proper. Both persons who were to be affected, and whose property rights were to be affected by such agreement, if there were one, were living, and either was competent to testify as to any knowledge he had on said subject. We therefore hold that the evidence of appellee affecting said question was properly admitted. As tending to support this interpretation of §522 Burns 1914, supra, see Snyder v. Frank (1912), 53 Ind. App. 301, 101 N. E. 684; Hitt v. Carr (1916), 62 Ind. App. 80, 109 N. E. 456. Taylor v. Duesterberg, Admr. (1887), 109 Ind. 165, 171, 172, 9 N. E. 907; Waltz v. Waltz (1882), 84 Ind. 403, 409.
This conclusion also disposes of that ground of appellant’s motion for new trial which challenges the decision of the trial court as not being sustained by sufficient evidence. Said evidence being properly admitted, there was evidence justifying such decision. Boyer v. Libey (1882), 88 Ind. 235; Riehl v. Evansville
At the trial, the appellee offered and read in evidence the following letter:
“The First National Bank of Swayzee, Indiana.
“Swayzee, Indiana, Oct. 1, 1913.
“Harness & Moon,
“Kokomo, Ind.,
“Dear Sirs:
“On investigating the files of Farmers Banking Co. we find that Mrs. Maud Spurgeon had a deposit of $1,506.50 Feb. 10, 1906. At that time she had a small balance and took a certificate of deposit, which she held until Aug. 26, 1907, when it was deposited with accrued interest making a total of $1,-674.75. This amount with another deposit of $70.00 made a check of $1,744.75, drawn on Oct. 29, 1907.
“We have no means of knowing in what form this was deposited or any disposition of it, as all records of that kind have been destroyed.
“Trusting this may be satisfactory,
“I remain,
“Tessa C. Plackard.”
No reversible error being shown, the judgment below is affirmed.
Note. — Reported in 115 N. E. 680. Fraudulent conveyances: what knowledge or notice of secret trust is sufficient to put purchaser from fraudulent vendor on inquiry, 32 L. R. A. 56; intent of grantor as test of validity of conveyance, 14 Am. St. 747. See under (1) 39 Cyc 559; (5) 40 Cyc 2266; (6) 2 Cyc 704; (8) 38 Cyc 1344.