185 Ind. 561 | Ind. | 1916
— This was an action by appellees to quiet title to certain lands in Pulaski county. Appellant filed a cross-complaint in which she claims an equitable title to portions of the land based on an alleged constructive trust, and she seeks recovery of possession thereof. Appellees answered the cross-complaint with a general denial, and pleas of the fifteen and the twenty-year limitation statutes. §§295, 296 Burns 1914, §§293, 294 R. S. 1881. The land in question was originally owned by John Davenport, who had three children, Albert and Charles Davenport and Ruth Gundrum, all of whom are dead. Appellant is the daughter and only heir
We here set out the substance of the several findings (thirty) and, in some instances, the whole thereof. On July 8, 1861, John Davenport owned, in fee simple, 754 acres of land in Pulaski county and' lived on a portion of it. Albert then lived on his father’s land in a residence across a highway from that of his father. Ruth Gundrum’s husband had died in 1859, and afterwards until her death in 1888,. she lived in her father’s residence. Charles moved to Iowa in 1855, where he lived until his death in 1905. John'Davenport’s wife was ten years younger than he. Neither couldread nor write, and for assistance in business affairs they depended largely on Albert who was a shrewd, capable and experienced business man, and they reposed confidence in his honesty. At the time, John owned personalty worth $8,000, but was surety on the bond of a defaulting clerk of the Pulaski circuit court. Albert told his parents of the defalcation, and stated that his father would lose all his land if not conveyed to him. At first the parents refused to make a deed, but afterwards Albert promised a reconveyance of the lands after the settlement of the clerk’s liabilities, and, relying on the promises and statements, the requested deed was made, conveying all the land to Albert excepting forty acres.
Findings numbered 13, 14, and 15, on which appellant specially relies, are as follows: “Thirteenth: That said Ruth Gundrum was a person of mature years and of sound mind; and she and her brothers Albert Davenport and Charles L. Davenport met at the home of said Albert on the 13th day of October, 1879, for the purpose of talking over their respective interests and rights in the estate of John Davenport, they being his only heirs, at which time the said Ruth Gundrum executed a warranty deed to Albert Davenport, the said Charles L. Davenport joining therein for the Southeast Quarter of the Southeast Quarter of Section Two (2), Township Thirty (30) North, Range Two (2) West; the North half of the Northeast Quarter, ten (10) acres off of the North side of the Southeast Quarter of the Northeast Quarter of Section Eleven (11), Township Thirty (30) North, Range Two (2) West containing One Hundred and Thirty (130) acres more or less, which deed is recorded in Deed Record ‘28’, at page 349 of Pulaski County, Indiana. That Ruth Gundrum, together with Albert Davenport, at the same time executed to Charles L. Davenport, a deed to the Southeast Quarter of the Northeast Quarter of Section Two (2), Township Thirty (30) North, Range Two (2) West, in Pulaski
“Fourteenth: That on the 15th and 16th days of October, 1879, ten days after John'Davenport’s death-, there were recorded in the Recorder’s office of Pulaski County, Indiana, two Warranty Deeds purporting to have been executed by John Davenport on the 14th day of April, 1879, which was six months before his death. By one of these deeds, John Davenport conveys to Albert Davenport the same real estate as that described in the deed procured from Ruth Gundrum as set out in the last preceding finding, to-:wit: The Southeast Quarter of Section Two (2); ten acres off of the North side of the Southeast Quarter of the Northeast Quarter, and the North half of the Northeast Quarter of Section Eleven (11), all in Township Thirty (30), North, Range Two (2) West, Pulaski County, Indiana. The second deed of that date, April 14, 1879, conveys to Ruth Gundrum certain real estate described in the language of the deed, as follows: The Southeast Quarter of the Northeast Quarter, and the Northeast Quarter of the Southeast Quarter of Section Two (2), Township No. Thirty (30) North, Range Two (2) West, containing eighty acres more or less, and the Northeast Quarter of the Southeast Quarter of Section No. Two (2), Township No. Thirty (30) North, Range No. Two (2) West, containing forty acres more or less.
“John Davenport was then about seventy-nine
“Fifteenth: That a very few days after the recording of the two deeds, April 14th, 1879, described in the last preceding finding, Ruth Gundrum was informed of the fact, and learned of their execution and of their contents for the first time, and immediately sent for her brother Albert Davenport. He came and stated to her, after a half hours stay among other things that ‘he would make it alright’. Ruth Gundrum lived in the homestead across the highway from Albert Davenport until her death and he maintained friendly, intimate and confidential relations with her. That the Ruth referred to in these findings was Ruth Gundrum and the Mrs. Terry referred to in these findings is the cross-complainant Mary E. Terry.”
Albert Davenport died testate in 1906, and by his will, duly probated, devised all his real estate to the four children of his brother Charles. These children were plaintiffs below. While the suit was pending, one of them died, and its heirs were substituted. Ruth Gundrum died intestate in 1888, and appellant is her only heir. Appellant lived with her mother at the John Davenport residence, a mile north of Winamae, until 1872 when she married, and has since resided at Winamae. She did not discover the
The concluding clause in the finding No. 18 is as follows: “That neither John Davenport nor Ruth Gundrum discovered or knew of the fraud in these findings stated while they lived and neither of them knew that Albert Davenport did not intend to execute said trusts in compliance with their .terms.” Finding No. 25, relating to the 120-acre homestead occupied by Albert, is as follows: “That said Albert Davenport under said deed of John Davenport, dated July 8th, 1861, took possession of said North half of the Southwest Quarter of Section One (1), and the Southeast Quarter of the Southwest Quarter of Section One (1), Township Thirty (30) North, Range Two (2) West, about the year 1865, and has ever since remained in the open, notorious exclusive adverse possession of said real estate, as against John Davenport, Ruth Gundrum and the Cross-complainant or any person claiming adversely under or through them, claiming to own same, fenced and ditched, farmed the tillable part thereof, paid taxes thereon from the year 1862 until the date of his death which occurred February 10th, 1906. That the plaintiffs herein and cross-defendants John A. Davenport, Lincoln H. Davenport, Jesse C. Davenport and Laura D. Correll, devisees of said Albert Davenport since the death of said Albert Davenport have been continuously, and are now in the open, notorious, exclusive, adverse possession of said real estate claiming to own the same, as against said John Davenport, Ruth Gun-drum, Mary E. Terry or any person claiming adversely under or through them.”
Finding No. 26 relates to the other lands claimed . by appellant, located in sections 2 and 11, township 30, range 2, and states that, after the execution of
Albert Davenport lived in a residence situated on the northwest quarter of the southwest quarter of section 1, township 30, range 2, from, 1863 to the time of his death. This residence was separated from that of his father by a north and south highway leading to Winamac, a mile distant south. Albert and appellees have paid taxes on the land in question in an amount above $3,000. There is no finding as to the value of the land at any period. The land described in appellant’s cross-complaint includes the 120 acres in section 1, occupied by Albert as a homestead, and the land described in John’s deed to Ruth of April 14, 1879, and fifteen acres in section 11 owned by John in 1861.
Appellant’s counsel earnestly contend that the court erred in overruling the motion for a venire de novo. It is claimed that the findings are so defective as to preclude support of a judgment, and that, while stating evidentiary rather than ultimate facts, such evidentiary ones establish the ultimate fact of fraud. Knight v. Kerfoot, supra, Maxwell v. Wright (1902), 160 Ind. 515, 67 N. E. 267. It will be noted that it is expressly found in finding No. 25 that in 1865 Albert took possession of the 120-aere tract used by him as a homestead, and thereafter until his death remained in the open, notorious, exclusive possession thereof as against John Davenport, Ruth Gundrum, appellant and any other person, and fenced, ditched and cultivated it, and that after his death appellees have held like possession. Finding No. 26 shows that after the execution of Ruth Gundrum’s deed on October 13, 1879, which purported to convey all the remaining land in controversy except fifteen acres, Albert took possession of all of the remaining land, and claimed and exercised the same possessory rights as he did in the 120-aere tract, and that after his death appellees held like possession. Assuming that the findings show evidentiary facts requiring the inference of
Appellees claim that on the facts exhibited in the findings appellant’s cause of action was barred by our statutes of limitation. Appellant seeks to meet this contention by asserting that statutes of limitation do not run against suits of purely equitable cognizance, or express trusts, nor in any case do they commence to run where the complainant was ignorant of the facts if they were concealed by the respondent. §302 Burns 1914, §300 R. S. 1881.
Note. — Reported in 112 N. E. 998. See under (1) 39 Cyc 26; (2,4,5) 38 Cyc 1980, 1981; (6, 7) 25 Cyc 1057, 1150; (9) 39 Cyc 637; (10) 25 Cyc 1213. Statute of limitations: nature and purpose, 101 Am. St. 145; applicability to defenses, 4 Ann. Cas. 933, Ann. Cas. 1915A 608, 25 Cyc 983; applicability as between a trustee and the beneficiary of an express trust, 3 Ann Cas. 200, 13 Ann. Cas. 1165. Possessory title, use of as offense, 46 L. R. A. (N. S.) 487; 2 C; J. 251, 255; 1 Cyc 1135, 1138.