5 N.E.2d 315 | Ind. Ct. App. | 1936
The appellant brought suit against the appellees by a complaint in two paragraphs; the first was for possession of real estate and damages for its unlawful detention; the second was to quiet title to the same tract of real estate. To this complaint appellees filed an answer in general denial and a second paragraph of answer alleging affirmative facts on the theory of former adjudication. To this second paragraph of answer the appellant filed a reply in two paragraphs, the first being upon the theory of confession and avoidance, the second being a general denial. The appellee Herman Bringolf filed a cross-complaint against the appellant, asking that his title be quieted to the real estate in question. Appellant filed an answer in general denial to this cross-complaint.
Upon these issues the cause was tried to the court without a jury. Upon request, the court found the facts specially and stated conclusions of law thereon in favor of the appellees, pursuant to which judgment was rendered against the appellant on her complaint, and in favor of the appellee Herman Bringolf on his cross-complaint, quieting his title in said real estate as against the appellant.
Appellant filed a motion for a new trial, alleging as causes therefor, that the decision of the court was contrary *18 to law, and was not sustained by sufficient evidence. This motion was overruled, and appellant appeals, assigning this action of the trial court as the only error for reversal.
To aid in applying the facts to the tracts of real estate involved in this litigation, a plat showing the boundary lines of each tract of real estate is set out herein, and is as follows:
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]
NOTE: — Twenty acres in southeast corner of unknown shape excepted.
From the court's special finding we summarize the following pertinent facts. For more than ten years *19 previous to April 22, 1921, John P. Stauffer had been the owner of both tracts of real estate designated as "A" and "B" in the plat, on that day Stauffer conveyed both of these tracts of real estate to Stanford Willard. From May 10, 1921, to May 4, 1924, judgments were recovered against Stauffer in favor of six different parties in the Elkhart Superior Court, in amounts aggregating $4,809.41. May 2, 1924, a judgment was rendered in the Elkhart Superior Court, setting aside the deed from Stauffer to Stanford Willard, for fraud in its execution, and ordering both of the tracts of real estate contained within the plat sold to satisfy said judgments. May 16, 1924, execution was duly issued on each of the judgments and placed in the hands of Arthur W. Fonda, the then sheriff of Elkhart County. November 15, 1924, Fonda, as sheriff, returned the executions with a written return thereon, to which he recited, that he had given notice of the sale of the real estate of Stauffer on which he had levied to satisfy said judgments, as required by statute, a copy of the notice was attached to the return. He also recited that on November 15, 1924, he sold the real estate described in the notice to one Herbert W. Layer, Trustee; that he had executed his certificate of purchase to Layer, Trustee; that he paid over to the different judgment creditors the amount of their respective judgments, and that said judgments were satisfied. This return was filed in the office of the clerk of the court November 22, 1924. The notice set out in the return was a true copy of the notice which the sheriff gave of the sale and which he filed in the clerk's office. That portion of the real estate indicated as tract "B" on the plat was not described or included in the notice of sale attached to the return, nor was it included in the return of the execution or certificate of sale. November 22, 1924, the sheriff also filed a copy of the certificate of sale in the clerk's office, and it was *20 recorded in Lis Pendens Record. November 13, 1925, Layer, Trustee, assigned his certificate of sale to the appellee Bringolf and on November 16, 1925, Thomas Long, the then sheriff of Elkhart County, executed a sheriff's deed to Bringolf, in which the land was described just as it was in the certificate of sale. This sheriff's deed was placed on record November 20, 1925. In November, 1925, the appellee Bringolf took possession of all the real estate contained in the plat, being tracts "A" and "B" and the cart way, and being the same land which Stauffer had conveyed to Stanford Willard April 22, 1921, and he had ever since been in possession of said real estate under a claim of ownership. In March, 1930, Bringolf leased all the real estate included in the plat to his co-appellee, Pippenger, and he has ever since been in possession of the same as tenant of Bringolf. February 15, 1926, Arthur W. Fonda, whose term of office as sheriff of Elkhart County expired upon January 1, 1925, filed a petition in the Elkhart Superior Court, in which he alleged that in making his return on the execution above referred to, the land reported sold was erroneously described, and in said petition he asked leave of court to amend his return, and submitted to the court for its approval such amended return as he desired to make. No notice of any kind or character was given to any person of the filing of this petition, and no person except Arthur W. Fonda appeared thereto. February 15, 1926, the court granted permission to amend said return, and endorsed its approval on the amended return so submitted to it. February 15, 1926, the said Arthur W. Fonda filed said amended return as approved by the Elkhart Superior Court in the office of the clerk of said court. In said amended return the entire tract of real estate including both tracts "A" and "B" contained in the plat, and being the tract of real estate described in the deed from *21 Stauffer to Stanford Willard April 22, 1921, was correctly described. February 15, 1926, Thomas Long, the then sheriff of Elkhart County, executed a sheriff's deed to the appellee Bringolf, of the same real estate described in the amended return of that date. This deed was placed on record February 15, 1926. Stanford Willard died testate in Elkhart County, September 30, 1926. Under the terms of his will, which was duly admitted to probate, his widow, Anna E. Willard, became the owner of all the real estate of which he died seized. February 24, 1932, Anna E. Willard, surviving widow of Stanford Willard, executed a quit claim deed to John P. Stauffer of any interest which she might have in the tract of real estate designated as tract "B" on the plat. February 25, 1932, Stauffer confessed judgment in favor of Anna E. Willard for the sum of $25,000 in the Elkhart Circuit Court. March 3, 1932, the clerk of the Elkhart Circuit Court issued an execution on this judgment and placed it in the hands of Mearl A. Forry, sheriff of Elkhart County, for service. March 4, 1932, the sheriff levied this execution upon that portion of the real estate designated on the plat as tract "B," which tract of real estate, at the time, was in possession of appellee Bringolf under a claim of ownership. April 9, 1932, the sheriff sold tract "B" of said real estate on which he had levied the execution in his hands at sheriff's sale to appellant Frances E. Willard for the sum of $2,000 and delivered to her his certificate of sale therefor. April 11, 1932, Stauffer executed his quit claim deed to appellant Frances E. Willard for said real estate designated as tract "B" on the plat.
April 5, 1932, appellee Bringolf filed his complaint in the Elkhart Circuit Court against Anna E. Willard, individually, and in her capacity as executrix of the last will and testament of Stanford Willard, deceased, Frances E. Willard and John P. Stauffer, to quiet his *22 title to the tracts of real estate designated on the plat as "A" and "B" and the cart way. April 26, 1932, Anna E. Willard, individually, and as executrix of the last will and testament of Stanford Willard, deceased, and John P. Stauffer filed disclaimers to said tracts of real estate and on May 10, 1932, on their motion said cause was dismissed as to them. April 26, 1932, Frances E. Willard filed a cross-complaint in said cause asking that her title be quieted in that tract of real estate designated as "B" on the plat. May 10, 1932, on motion of appellee Bringolf, his action against Frances E. Willard was dismissed, and in December, 1932, she dismissed her cross-complaint against appellee Bringolf. November 21, 1932, Anna E. Willard executed a quit claim deed to appellant conveying all her interest in the real estate designated as tract "B" on the plat, being the same tract of real estate sold to appellant by the sheriff of Elkhart County on April 9, 1932. On April 13, 1932, and November 26, 1932, appellant demanded possession of the tract of real estate designated as "B" on the plat from appellees, which demand was refused. The court found as a fact that the appellee Bringolf was the owner in fee simple of all the real estate shown on the plat, and that the claim of appellant in and to said real estate was without right and unfounded, and a cloud upon appellee Bringolf's title in and to said land.
It is appellant's contention that special finding No. 20 reading as follows: "cross-complainant Herman Bringolf is and was at the time of filing his cross-complaint the owner in fee 1. simple of the real estate described in his cross-complaint," is not sustained by sufficient evidence and is contrary to law. All of appellant's propositions, points and authorities are directed to the support of this contention. In answer thereto, appellees assert that finding No. 20 is not the finding of an ultimate fact, but is a conclusion of *23
law, improperly cast in the special finding of facts, has no force or effect as such, and that since the correctness of this finding is the only question presented by appellant, her assignment of error brings nothing before us for consideration, and cite Kitts v. Wilson (1891),
The deed of conveyance from John P. Stauffer to Stanford Willard was set aside for fraud, and the real estate described therein, which was all the real estate contained in the 2. above plat, was ordered sold to satisfy the judgment which had been obtained against Stauffer. No one is questioning the regularity of these judgments in this proceeding. The executions were issued and delivered to the sheriff for service and return, and no one questions the regularity and validity of these writs. The amended return of the sheriff to these executions recites that he levied upon, advertised and sold all the real estate contained in the plat as the property of Stauffer to satisfy the several judgments, and an amended sheriff's deed containing a correct description of all the real estate in the plat was issued to the appellee Bringolf and placed on record. The description of the real estate in the copy of the notice of sale attached to the original return did not contain that portion thereof designated as tract "B" on the plat. While this may have been an irregularity in the sheriff's sale of the real estate, it did not have the effect of rendering the sale void but voidable.White v. Cronkhite (1871),
The rule is that great liberality in amending returns should be allowed and no formal proceedings are necessary, *25
and a return when properly amended with the sanction of 3, 4. the court speaks as of the date of the original return. In discussing the rights of an officer to amend his return, and the effect thereof, even though his term of office may have expired, our Supreme Court in the case of Dwiggins v.Cook (1880),
"The authorities are strongly in favor of the right to amend a return after the expiration of the official term." See alsoTurner v. First National Bank (1881),
But the appellant contends that since there was no notice given of the filing of the petition by the former sheriff, Fonda, for leave to amend his return, it is not binding upon John P. 5-8. Stauffer, Anna E. Willard, or herself. Whether or not a notice of *26
the filing of a petition to amend the officer's return to an execution is necessary, is a question on which the authorities are in conflict. Stetson v. Freeman (1886),
The law is so well settled that in a suit in ejectment, or to quiet title to real estate, the party asserting such right must recover upon the strength of his own title, and not 9, 10. upon the weakness of his adversary's title, that the citation of authorities is unnecessary. The court found that both of the deeds which Bringolf received from the sheriff were duly recorded; that Bringolf took and continuously retained possession of the real estate from November, 1925, under a claim of ownership, and that the appellee Pippinger was continuously in possession thereof as tenant from March, 1930. It was while appellees were occupying the real estate under this set of facts that appellant asserts that she became the owner in fee simple of that portion thereof designated as tract "B" on the plat. In the recent case of Callahan Co. v. Lafayette Consumers *29 Co. (1936),
"In Smith v. Schweigerer (1891),
"Where a prospective purchaser of real estate is informed by a tenant in possession of the lessor's claim or interest in the premises, he is put upon inquiry and cannot thereafter become a bona fide purchaser. Gallion v. McCaslin (1820), 1 Blackf. 91. This court has held that a parol contract for the sale of real estate for a valuable consideration may be validated by possession given and taken under the contract, and that the principles of equity will not permit one who has thus rightfully gone into possession as a purchaser to be transformed into a trespasser and wrongdoer at the will of a vendor or his privy. Possession of such purchaser is sufficient notice of his rights.Mowery v. Davis (1895),
"Open, visible, continuous, notorious, unequivocal, exclusive, and uninterrupted possession of land, a possession which would be naturally and generally known is notice to the prospective purchaser of the rights of one in possession, and that knowledge of possession on the part of the purchaser is not necessary, notice in such cases is a legal deduction from the fact of possession, and possession by an equitable claimant *31
at the time of consummation of the sale is as effective to charge the purchaser with notice as the recording of an instrument prior to such purchase. Mishawaka, etc., Co. v. Neu, supra; Johnson
v. Glancy (1835), 4 Blackf. 94; Decker v. Mahoney (1917),
"In the case of Wulson v. Kruse (1915),
"`Contracts not under seal, and even contracts not in writing, affecting land, are recognized in equity if they have been so far performed that to permit the party to repudiate them would be fraud.' See also Moore v. Machinery, etc., Co. (1921),
"The appellant was bound to take notice of the recorded Wildhack lease, and the assignments thereof duly entered of record. American, etc., Co. v. Indiana, etc., Co. (1906),
We think the language above quoted and the principles of law announced therein are applicable to the facts and conclude the rights of the parties in the case at bar, and that the court did not err in overruling the motion for a new trial.
Judgment affirmed. *32
