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Eoby, C. J.
Action by appellee against appellant. Special finding of facts and conclusions of law thereon. Judgment for $1,391.45. It appears from the special findings that appellant was in possession, claiming ownership, of that part of outlot eighty-two, in the city of Indianapolis, designated on the following plat by the letters E, H, H, B.
Appellee was shown the land by a real estate agent, representing appellant,. who stated to him that the lot was 60 feet wide on Washington street and 135 feet deep, and that the south boundary was the line of the railroad right of way. He called attention to this boundary as an inducement for the appellee to purchase, and stated that by reason of the lot abutting upon the railroad it had an additional value. Appellee had no other information, and believed and relied upon such statements. The agent acted honestly, and without fraudulent purpose. Appellant’s title was based upon a mortgage foreclosure. It furnished appellee an abstract the description in which followed the description carried through the proceedings. The title, as shown by the abstract, proving satisfactory, appellee purchased the land, as he supposed, included in the tract above designated, receiving a deed therefor with special covenants amounting to a quitclaim, in which the description contained in the abstract was inserted. He took possession thereunder, and paid the agreed price of $16,500. Some six months later he discovered that the land described in such deed, and the only part of said lot to which appellant had any record title, was the tract designated on the plat by the letters A, O, E, H; leaving that portion of said lot designated by the letters A, B, O, D, undisposed of. Appellant, as well as its agent, believed that the description contained in the deed covered the entire tract.
The court found specially that at the time of the purchase appellant was in possession of both brick buildings upon said lot in their entirety, and of the tract designated on the cut by the letters S, O, D, T, but that there was no evidence of possession by anyone of the triangular tract south of the building and designated by the letters B, T, V, W, T, X. It was further found that appellant and its grantor and its grantee, the appellee, did hold adverse and continuous possession of all said lot except the last-mentioned portion thereof for more than twenty years prior to the commencement of the action; that appellee took possession thereof, claiming the same as of right by virtue of his deed from appellant; that the tract last mentioned, imme diately south, of the building, had been vacant during all the time covered by the findings until after the conveyance to appellee, sometime after which he executed a quitclaim deed to a third party for a portion thereof, having in the meantime procured a quitclaim deed for the entire lot from appellant’s grantor, who had no title to convey. It is further found that the evidence fails to show who has record title to the land south of the line AO, but that it was not held by appellant.- The value of the entire tract was found to be $16,500; the value of that portion described in the deed $14,500; the triangular piece south of the building $950. The conclusions of law were that the appellee was entitled to recover the value of the last-mentioned portion of the lot with six per cent, interest from the date of the conveyance, amounting to $1,391.45, for which sum judgment was rendered, this appeal being taken therefrom.
The rule that the pleading must be good upon the theory adopted by the pleader has been frequently stated. Miller v. Miller, 17 Ind. App. 605. Determining the theory of the complaint from the facts stated therein, and not from the statements or admissions of the parties, as seems to be required (American Wire Nail Co. v. Connelly, 8 Ind. App. 398), and construing the complaint liberally (§3l9 Burns 1901), the complaint is held to state facts sufficient to constitute a cause of action.
“If a person sell real estate simply by the description contained on the face of his title papers, he is not accountable for its .location, its lines, etc.; but if he undertake to point out to the purchaser the lines, or the place where it lies, or its improvements, he does it at his peril. If he make a mistake it is at his own loss. The rule caveat empf tor can not apply. When the vendor undertakes to point' out and show the particular premises, the lines, the improvements, etc., to the vendee, the law implies a warranty that he is pointing out and showing the true and identical premises, lines, improvements, etc., that he is selling; and if he make a mistake he must be accountable.” Cowger v. Gordon, 4 Blackf. 110; Port v. Williams, 6 Ind. 219; Campbell v. Frankem, 65 Ind. 591.
“He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by a mistake, he must still remain liable for that variance.” McFerran v. Taylor, 3 Cranch 270, 2 L. Ed. 436.
Appellant contends that Cowger v. Gordon, supra, and Campbell v. Frankem, supra, were incorrectly decided. The cases have not been overruled, and are, therefore, followed. The criticism made upon them is that the contract between the parties having been reduced to writing, previous oral negotiations are merged therein, and that the terms of the agreement can not be made to apirear otherwise than by reference to the writing. The general proposition is well settled, but it does not prevent proof of collateral independent parol agreements between the parties prior to or contemporaneous with the time of the writing, while fraud and mistake may always be shown. The doctrine of merger in nowise applies to them. Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Page v. Lashley, 15 Ind. 152; Carver v. Louthain, 38 Ind. 530; Maris v. Iles, 3 Ind. App. 579; Tyler v. Anderson, 106 Ind. 185.
Facts averred are sufficient to show payment of money made under a mistake of fact, induced by vendee. Solinger v. Jewitt, 25 Ind. 479, 87 Am. Dec. 372; Fleetwood v. Brown, 109 Ind. 567; Tyler v. Anderson, 106 Ind. 185; Hays v. Hays, 126 Ind. 92, 11 L. R. A. 376.
Where there is partial failure of title, the damages recoverable bear the same proportion to the whole purchase money as the value of the part to which title fails bears to the value of the whole property. First Nat. Bank v. Colter, 61 Ind. 153; American Cannel Coal Co. v. Seitz, 101 Ind. 182; Moorehead v. Davis, 92 Ind. 303; Hoot v. Spade, 20 Ind. 326; Mooney v. Burchard, 84 Ind. 285.
The burden was upon the appellee. The finding shows that as to the tract south of the building (B, T, V, W, X, T) he received no title either by deed or possession. As to the residue of the land south of the deed- line AC, he did receive possession from appellant. Whether he thereby acquired title or not is not determinable from the record. The judgment is correctly based upon the failure of title to that part of the tract south of the building above referred to.
A further question is made upon the motion for a new trial. Appellant’s counsel contend that the dimensions of the tract referred to show that its area is incorrectly estimated. The area, as stated in the findings and as shown •by the testimony of the only witness who testified upon the subject, was 397 square feet. Appellant’s counsel state that its true area is 315.75 square feet, supporting the assertion with elaborate computation which should have been presented to the trial judge. The actual error in the computation is less than forty-five square feet, and, in view of the finding that the value of the tract was $950, we are not disposed to direct a new trial.
Judgment affirmed. | [
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Wiley, J.
This was an action by appellee against appellant to recover for certain furniture and apparatus furnished appellant. Complaint in four paragraphs. Demurrer to each paragraph for want of facts overruled. Plea in abatement in two paragraphs.' Demurrer to each paragraph sustained. Answer in general denial and two affirmative paragraphs. Demurrer to each affirmative paragraph sustained. Trial by court. Judgment for appellee. Motion for a new trial overruled. Exceptions reserved to and error assigned on each adverse ruling.
The substantial averments of the first and second paragraphs of complaint, with the exception of the exhibits and the descriptions of the property, are identical, and are in substance as follows: That on September 10,''1900, tbe said school township, through its duly authorized, elected, and acting trustee, John F. Lingeman, contracted in writing with the plaintiff to purchase of plaintiff, for cash to said plaintiff, the following articles of furniture and apparatus for said school township, to wit (here follows description of property), all for the agreed price of $-; that said furniture, as contracted for, and as above set out, was furnished and delivered to said school township in accordance with the terms and conditions of said contract, and the same is now in use in the high school building of said Lincoln township, Hendricks county, Indiana. A copy of said contract is filed herewith, and made a part of this paragraph, and marked “exhibit-” (exhibit A, a contract for desks and chairs, made a part of the first paragraph, and exhibit B, a contract for a bell and twenty-eight maps, made a part of the second paragraph). Plaintiff also says that before said contract was made and said goods contracted for, the said trustee of said township advertised, as by law provided, for bids for said articles of apparatus, and the bid of the plaintiff was the lowest and best bid received, and the advisory board of said township accepted said bids and made an entry on their records authorizing and directing the said trustee to purchase of the plaintiff the apparatus and furniture above set out; that the pay for said school apparatus and furniture as contracted for and delivered as aforesaid has long since become due, and payment has often been demanded, but the defendant has refused and still refuses to pay the same. Wherefore, etc.
The third and fourth paragraphs of the complaint are not dissimilar in substance, and allege, in effect, that on September 10, 1900, the school township, through its duly and legally authorized, elected, and acting trustee, John F. Lingeman, entered into a contract in writing with the plaintiff, which contract is in the words and figures fol lowing, to wit (here follows a copy of the contract), by which contract the defendant agreed to purchase of the plaintiff the articles and property therein named, to wit (here follows an enumeration of the desks and chairs, in the third paragraph; and the bell and maps, in the fourth paragraph), all for the agreed price of $-; that said items so set out were for the use of the defendant, and were useful, suitable, and necessary for the benefit of the schools of defendant, and were of the reasonable value of $-, the amount agreed to be paid for the same; that plaintiff, in pursuance of his contract as above set out, delivered said school furniture to the defendant, and defendant received the same, and has occupied, used, and appropriated the same for the benefit of his said schools, and is now using said furniture; that the pay for the school furniture as contracted for and delivered as aforesaid was demanded of the defendant immediately after the same was delivered, but the defendant refused and still refuses to pay for the same. Wherefore, etc. In these two paragraphs recovery is sought upon the quantum meruit. Erom the view we have taken of the law applicable to the facts disclosed by the complaint, it is unnecessary to set out or consider the answer.
The question of controlling influence, as presented by the record, arises upon the action of the trial court in overruling the demurrer to each paragraph of the complaint. If neither paragraph of the complaint, tested by the demurrer, states a cause of action, it is unnecessary to consider subsequent rulings as affecting other pleadings.
It is essential to the determination of the sufficiency of the complaint to consider some of the statutory provisions relating to the power and prescribing the duties of township trustees as defined by the act of 1899, commonly known and designated as the township reform law, and the subsequent act of 1901. The act of 1899 (Acts 1899, p. 150) provides for the appointment and subsequent election of a township advisory board, and prescribes their duties. The board is to act in an advisory capacity with the township trustee in fixing the rate of taxation, in determining township expenditures upon estimates furnished by the trustee, and clothes the board with certain authority in specific matters. At the annual meeting of the advisory board, among other things, section four requires that the trustee shall present to the board a detailed and itemized statement in writing “of all the property and supplies on hand whether in use or in store, for road, school and other purposes; * * * the items of school supplies necessary for each school.” Section six of the act provides: “In no event shall a debt of the township, not embraced in the annual estimates fixed and allowed, be created, without such special authority, and any payment of such unauthorized debt from the public funds shall be recoverable upon the bond of the trustee,” etc. The term “special authority” as above used refers to authority given by the board at a -special meeting of the board, upon call of the trustee, to determine whether an emergency exists for the expenditure of any sums not included in the existing estimates and levy as fixed at the annual meeting. Section nine of the act provides: “If he [the trustee] desires to purchase any school furniture, fixtures, maps, charts or other school supplies, excepting fuel * * * in such amounts as may be authorized by the advisory board, in any year, he shall make an estimate of the kinds and amounts, itemized particularly, to be used by bidders therefor.” The same section also provides: “When a bid is accepted, a proper contract shall then be reduced to writing * * * and be signed by the successful bidder and the trustee, who shall require the bidder to give bond with security,” etc. Section eleven of the act, provides that, “all contracts made in violation of this act shall be null and void.” All the provisions of this act were in force when the contracts in suit were made, unless, as contended by appellee, certain of them were repealed by the act of March 4, 1899 (Acts 1899, p. 424). It is urged with much force and vigor that the latter act repealed the act of February 21 (Acts 1899, p. 150), in so far as the former law related to and controlled township trustees in the management of the affairs of the school township. The rulings of the trial court upon the demurrers to the various pleadings seem to indicate that it proceeded upon the theory that the latter act repealed the former in so far as it related to the powers and duties of the school township. Counsel for appellant concede, in argument, that if, in relation to the affairs of the school township, the trustee is not governed by the provisions of the “reform law” (Acts 1899, p. 150), then the rulings of the trial court were right, and the judgment should be affirmed.
The act of March 4, 1899, contains three sections, aside from the repealing and emergency clauses. Section one provides that township trustees shall take charge of the educational affairs of their respective townships. It empowers them to employ teachers, to locate conveniently a sufficient number of schools, to build or provide houses, furniture, apparatus, etc.; also provides that a trustee may establish and maintain in his township at least* one graded high school; that the school trustees of two or more school corporations may establish and maintain joint graded high schools; that a trustee, instead of establishing a graded high school, may pay the tuition of his pupils competent to enter such school to another school corporation, such payment to be made out of the special school revenue; and that no such graded high school shall be built unless there are at least fifteen common-school graduates of school age residing in the county. Section two fixes the duration of the term of school in each township, and empowers the trustee to “authorize a local tuition levy sufficient to conduct a six months term of school each year based on estimates and receipts from all sources for the previous year: * * * Provided, such levy shall not exceed the limit now provided by law.” Section three provides that the “school trustees shall have the care and management of all property, real and personal, belonging to their respective corporations for common-school purposes, except the congressional township school lands, which lands shall be under the care and management of the trustee of the civil township,” etc.
Opposing counsel agree that the latter act is substantially a reenactment of other statutes then in force, and as section four repeals “all laws and parts of laws inconsistent with this act,” the present important question is to determine whether there are any provisions of the act of February 27, 1899, inconsistent with the act of March 4, 1899.
There are some general rules applicable to the repeal of statutes that may be briefly noted: (1) Repeals by implication are not favored. (2) Repeals by implication are recognized only when the earlier and later acts are repugnant to or are irreconcilable with each other. In such case, if the two.acts, by a fair and reasonable interpretation, can be made to operate in harmony, both will be upheld, and the later one will not be regarded as repealing the former by construction or intendment. (3) Where two statutes relating to the same subject-matter are enacted at different dates, but during the same session of the legislature, the presumption is that the lawmaking body intended that both should be operative and should be construed together. (4) The subsequent action of the legislature with reference to the subject-matter may be looked to and considered in determining the legislative intent as to a particular act. By the act of March 4, supra, it is evident there was no direct or express repeal of that part of the township „ reform law pertaining to the duties of school trustees. An express or direct repeal is where the repealed act is specifically designated in the repealing act. It follows that if the former act was repealed, it was by implication, unless the two acts axe repugnant to or irreconcilable with each other. It has been declared that where a new statute covers the whole subject-matter of an old one, adds new provisions, and makes changes, and where such new law, whether it be in the form of an amendment or otherwise, is evidently intended to be a revision, and to take the place of the old, it repeals the old law by implication. Nichols v. State, 27 Ind. App. 444; Thomas v. Town of Butler, 139 Ind. 245; Warford v. Sullivan, 147 Ind. 14. The act of March 4, supra, does not pretend to cover the whole subject-matter of the act of February 21, supra j it does not make any changes, and it is evident that it was not intended to be a revision, or to take its place. Giving to it the most liberal construction, we do not see where it is repugnant to or irreconcilable with it.
The two acts under consideration were passed by the same legislature, and only five days elapsed between their passage. It is too well understood to admit of debate or conjecture why the reform law was passed. It is sufficient to say that it was to correct evils which had grown up under previous laws, and to prevent unwarranted raids upon township treasuries. It is common history of the State, and hence courts take notice of it, that many of the evils with which the people and the legislature were confronted grew out of the unlimited authority which township trustees assumed, under the old law, pertaining to their duties in the management and control of the common schools. It was to curtail and limit that authority in large measure that caused the legislature to pass the township reform law. If the act of March 4, supra, repealed that law, as contended by appellee, we would have to conclude that the legislature, after having enacted a law looking to the better-protection of the interest of the people in the management and control of township business, deliberately attempted to undo its good work by passing the act of March 4, by placing the affairs of the townships, so far as they pertain to the management and control of the common schools, in the exclusive control of the trustees, where they rested prior to the passage of the reform law. This would be inconsistent and unreasonable, and we can not impute to a coordinate branch of the government either inconsistency or unreasonableness. To determine the intent of the legislature courts may look to subsequent legislation pertaining to like subject-matters. By the act of March 11, 1901 (Acts 1901, p. 415), the legislature amended §§6 and 8, of the act of February 27, 1899, supra. The amended §6 contains a special provision relating to the construction of school buildings. If the legislature intended by the act of March 4, 1899, supra, to repeal the act of February 27, 1899, supra, that pertained to the duties of township trustees in the management and control of schools, it would not have subsequently amended the law it so intended to repeal, by injecting into it provisions which pertain to the duties of township trustees, relating to the expenditure of money for the common schools. As above stated the act of March 4, 1899, was a substantial reenactment of former existing laws. It can not be said with any pretense of reason that, if the legislature had not passed the act of March 4, 1899, township trustees would not have been subject to all the provisions of the township reform law. It follows that the reenactment of the preexisting laws did not affect their duties or extend their powers in respect to the reform law.
That courts may look to subsequent legislation in determining legislative intent, see Sutherland, Stat. Constr., §311; Doggett v. Walter, 15 Fla. 355; Bigelow v. Forrest, 9 Wall. 399, 19 L. Ed. 696; Stout v. Board, etc., 107 Ind. 343; May v. Hoover, 112 Ind. 455; Hunt v. Lake Shore, etc., R Co., 112 Ind. 69. It will he presumed that the legislature, in enacting • the later statute, did not intend to interfere with or repeal a former law relating to the same subject-matter, unless tlie repugnancy between tbe two is irreconcilable. 'Sutherland, Stat. Constr., §152; State v. Smith, 59 Ind. 179; State v. Wells, 112 Ind. 237. The two statutes under consideration were enacted on different dates, but at the same session of the legislature, and both relate to the duties of township trustees in relation to their respective school townships. Under such conditions and facts the presumption will be indulged that they should both be operative, and should be considered together. Sutherland, Stat. Constr., §283; Indiana Cent. Canal Co. v. State, 53 Ind. 575; Shea v. City of Muncie, 148 Ind. 14; State v. Rackley, 2 Blackf. 249; Wright v. Board, etc., 82 Ind. 335.
Counsel for appellee have not pointed out any satisfactory reason why the two acts are repugnant to or irreconcilable with each other, and we are unable to see any. While the latter act prescribes certain duties, and clothes township trustees with certain powers, which existed under former laws, the reform law prescribes methods and places upon such officers wholesome limitations. These two statutes may well stand together, and, this being true, it is our duty to construe them in pari materia. Board, etc., v. Marion Trust Co., 30 Ind. App. 137; Shea v. City of Muncie, supra, and authorities there cited.
Having reached the conclusion that the latter did not repeal the former act, the law as applied to the facts disclosed by the complaint is settled by the case of Peck-Williamson, etc., Co. v. Steen School Tp., 30 Ind. App. 637.
The complaint fails to show a compliance with the provisions of the statute, and by express language of §11 of the act, the contract for the purchase of the supplies is “null and void.” That which the statute declares to be “null and void” can not be made valid by judicial construction or decision.
Judgment reversed, and the court below is directed to sustain the demurrer to each paragraph of the complaint. | [
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OPINION
MATTINGLY-MAY, Judge.
Oneida Kelly appeals the trial court's interpretation of the will of her brother, Jimmie A. Johnson. On appeal, Kelly raises one issue: Whether the trial court erred when it interpreted "all the remaining living room furniture" to mean "everything in the living room including everything on the walls and everything placed on a flat surface." We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Johnson executed his last will and testament on July 283, 1996. Part II of that will provided for the following disposition of personal property:
a. I will, devise and bequeath my antiques to ONEIDA KELLY, of Clen-wood, Arkansas, which antiques are found in the dining room, my two (2) bedrooms, my porch, my bathroom, my hallway, the wooden horse in the living room, three (8) Russian Icons of her choice, all antique dolls, all antique light fixtures and all of the rest of my personal property not otherwise mentioned. It is my wish and desire that ONEIDA KELLY provide care, maintenance and sustenance for Gladys F. Beatty while [sic] so long as she lives.
b. I will, devise and bequeath all of my kitchen utensils and the contents of my kitchen to ROBIN O'NEILL, of Evansville, Indiana.
c. I will, devise and bequeath to ZELDA RATLIFF, of Madisonville, Kentucky, my Chardon Jean painting on porcelain and a painting of a lady with a little girl on my credenza in the dining room.
d. I will, devise and bequeath to ESTER WALLAR, of Evansville, Indiana, all my St. Nicholas, Santa Claus and Christmas Decorations.
e. I will, devise and bequeath to ASHLEY HAY, of Glenwood, Arkansas any automobile that I own at the time of my demise.
f. I will, devise and bequeath to RALPH DIERLAM, of Iowa, all of the remaining living room furniture and all of the remaining Russian Icons after my sister, ONEIDA KELLY, chooses three (3) of the Russian Icons first.
(Appellant's App. at 16-17.)
Johnson died on August 24, 2000. Johnson's will was admitted to probate. During administration of the estate, Kelly and Dierlam began to dispute the proper interpretation of section f of Part II of the will. Dierlam believed that Johnson's devise to Dierlam of "all the remaining living room furniture" granted all the contents of the living room, after any other specific bequests had been removed, to Dierlam. Kelly, on the other hand, believed the bequest to Dierlam of "all the remaining living room furniture" granted Dierlam only large items such as chairs, tables, and desks, not paintings or other decorative items placed on tables, shelves, or desks. According to Kelly, all of the paintings and other decorative items belong to her because subsection a gives her "all the rest of [Johnson's] personal property not otherwise mentioned." (Id. at 16.)
After a hearing, the court entered a "Memorandum of Decision" in which it determined that "all the remaining living room furniture" meant "everything in the living room including everything on the walls and everything placed on a flat surface." (Id. at 10-11.) In other words, the trial court interpreted the will in favor of Dierlam, giving him all the remaining contents of the living room. Thereafter, the court made a formal entry of its decision. Kelly petitioned the trial court to permit interlocutory appeal. The trial court granted her request. Kelly petitioned this court to accept interlocutory jurisdiction, which we granted.
DISCUSSION AND DECISION
Kelly asks that we review the trial court's interpretation of "all the remaining living room furniture." The interpretation, legal effect, or construction of a will is a question we determine as a matter of law. In re Estate of Meyer, 668 N.E.2d 263, 265 (Ind.Ct.App.1996), reh'g denied, trans. denied. - Consequently, we give no deference to the trial court's decision and review the question de novo Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000) ("where the issue presented on appeal is a pure question of law, we review the matter de novo").
We may not construe a will unless an ambiguity exists in the will. In re Estate of Grimm, 705 N.E.2d 483, 498 (Ind.Ct.App.1999), reh'g denied, trans. denied. In the absence of an ambiguity, we must enforce "the express language of the will." Id. Before construing ambiguous language in a will, "we must first determine whether the testator's intent is clearly articulated in other provisions of the will." Id.
In the context of contract interpretation, we have stated "A contract term is not ambiguous merely because the parties disagree about the term's meaning." Roy 4. Miller & Sons, Inc. v. Industrial Hardwoods Corp., 775 N.E.2d 1168, 1173 (Ind.Ct.App.2002). Rather, language is ambiguous only if reasonable people could come to different conclusions about its meaning. Id. We apply the same standard here to determine whether the language in the will is ambiguous.
When construing the language of a will, our primary objective is to determine the intent of the testator. Id. To determine his intent, we look at the language used within the four corners of the instrument. Id. We presume the testator used words in their "common and ordinary sense and meaning." Meyer, 668 N.E.2d at 265. In addition, while previous decisions may help guide our interpretation of language, the meaning of language in any will is determined by the facts particular to that will. Grimm, 705 N.E.2d at 498.
At issue is the meaning of the word "furniture." Each party cites numerous sources, including dictionaries, case law, and the opinion of an auctioneer/appraiser, to support his or her version of the meaning of furniture. Much to our surprise, there is in fact a wide divergence in the meaning given to "furniture" across sources. Interestingly, it appears that the definition of the term has, to some extent, changed over time.
Older sources tend to interpret furniture as all the items in a room, including china, lamps, paintings, and candlesticks. For example, Black's Law Dictionary defines furniture as:
that which furnishes, or with which anything is furnished.or supplied; whatever must be supplied to a house, a room, or the like, to make it habitable, convenient, or agreeable; goods, vessels, utensils and other appendages, necessary or convenient for housekeeping; whatever is added to the interior of a house or apartment, for use or convenience.
Black's Law Dictionary 804 (4th ed. rev. 1968) (citing Bell's Adm'x v. Golding, 27 Ind. 173, 1866 WL 2544 (1866)). In addition, prior to 1958, almost all of the jurisdictions that had considered the definition of furniture had settled upon this broad definition. See 17A Words and Phrases 614-19 (Perm. Ed.1958).
Newer sources tend to interpret furniture to mean only large movable items, such as chairs, couches, desks, cabinets, and tables. For example, the dictionary provided on the internet by Encarta defines furniture as "tables and chairs: the movable items such as chairs, desks, or cabinets in an area such as a room or patio." Enearta World English Dictionary [North American Ed.] (2003), "http://En-carta.msn.com/ enenet/features/dictionary/ DictionaryResults.aspx?search=furniture" (last visited May 2, 2008) (emphasis in original) [hereinafter "Enearta Dictionary]. In addition, a man who had been dealing antiques for forty years testified at the hearing that "it is my opinion that a piece of furniture is something that you would put something in, something that you would sit or sat on or something that you would sit something upon." (Appellant's App. at 206-07.) He also testified that ceramic figures, paintings, knickknacks, and decorations are not what he would consider furniture.
Because of this divergence of definitions, we hold that the term furniture is ambiguous. However, we need look no further than the other sections of Part II of Johnson's will to determine whether the trial court's interpretation is correct. Contrary to the trial court's interpretation, Johnson did not intend to give Dierlam "everything in the living room including everything on the walls and everything placed on a flat surface." (Id. at 12.) If Johnson had so intended, his will would have given Dier-lam "the remaining contents of the living room," just as he gave O'Neill the "contents of [his] kitchen." (Id. at 16.) Consequently, Johnson must have meant something less than all the contents of the living room when he gave Dierlam "all of the remaining living room furniture."
The question remains: If Dierlam was not intended to receive the entire contents of the living room, what exactly did Johnson mean by "furniture"? Because the other parts of Johnson's will indicate he did not intend to give away the entire contents of his living room when he used the word furniture, we look at newer definitions of the word furniture to construe the language in his will.
The Cambridge Dictionary of American English defines "furniture" as "items such as chairs, tables, and beds that are used in a home or office." Cambridge Dictionaries Online, "http://dictionary.cambrig-de.org/define.asp? key=furniture*1+0&dict=A" (last visited May 1, 2003). As mentioned earlier, the Encarta Dictionary defines furniture as "tables and chairs: the movable items such as chairs, desks, or cabinets in an area such as a room or patio." See Enearta Dictionary, "http://Encartamsn.com/enenet/fea-tures/Dictionary/ DictionaryRe-sults.aspx?search=furniture" (last visited May 2, 2008) (emphasis in original).
Based upon those definitions, we hold that Johnson intended to give Dierlam large items that one would expect to find in a furniture store, including but not limited to tables, chairs, couches, and cabinets. We also hold that Johnson did not intend to give Dierlam the decorative items sitting in or on the large items, such as lamps, vases, statues, and candlesticks. Finally, because Johnson separately indicated that Dierlam was to get the "Russian Tceons" and the exhibits in the record indicate that many of those icons are hanging on the walls, we hold that Johnson's devise of furniture did not give Dierlam the items hanging on the walls, such as pictures and paintings. Consequently, we reverse the trial court's order and remand for further proceedings consistent with this opinion.
Reversed and remanded with instructions.
BROOK, C.J., and FRIEDLANDER, J., concur.
. Appellant's motion for oral argument is hereby denied.
. Kelly also petitioned this court to stay the requirement that she submit a $30,000 appellate bond. We granted that request in a previously issued order.
. -We reject the suggestion by Dierlam that we should apply the standard applied to a negative judgment or to a judgment entered with findings and conclusions.
. The attorney who drafted Johnson's will testified; however, his testimony did not resolve what Johnson meant by "all the remaining living room furniture." That attorney first testified that he did not intend to differentiate between "contents" and "furniture" and that he thought Johnson intended to give the entire contents of the living room by using the words "living room furniture." Then, one page later in the transcript, the same attorney testified that he did not believe furniture was intended to include ceramic items, knick knacks and other things of that nature. Consequently, his testimony does not help determine Johnson's intent.
. Dierlam argues that we must use the definition of furniture adopted by our supreme court in Bell, 27 Ind. 173, and applied by this court in Stockton v. State Bank of Rensselaer, 121 Ind.App. 7, 96 N.E.2d 910 (1951). However, in Stockton, when deciding how to define "furniture" we said:
[The] broad definition [of furniture] was proper in [Bell] because it is evident the parties intended to lease all the furnishings used in operating the hotel involved. With like reasoning it can be said that, in the present case, the testator intended to give to the appellee Snow whatever was necessary and proper for convenient and comfortable living in a five-room house.
Stockton, 96 N.E.2d at 911. As that quotation makes clear, we applied the definition from Bell because that definition made sense given the facts of Stockton. Given the facts here, however, it is not proper to apply the supreme court's definition from Bel/. Rather, we apply a definition that makes sense in the context of the other language used in the will. See Grimm, 705 N.E.2d at 498 ("although we may be guided by previous cases, the meaning of each will is determined by its own particular facts") (internal quotations omitted).
. In the event any Russian icons were placed in or on a large item, our holding is not intended to alter Johnson's specific bequest of those items to Dierlam.
. Proper adjudication of this appeal did not require us to address Kelly's third argument. Therefore, we make no holding regarding whether the trial court should have applied a rule of law requiring an ambiguous will to be construed in favor of any possible intestate beneficiaries. | [
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Draper, J.
This is an action in replevin, brought by the appellee finance company, to obtain possession of a certain DeSoto automobile in the possession of appellant, complaining that the appellant unlawfully detained the same from said appellee, the conditional vendor’s assignee.
Appellant filed answer under the rules, and also filed a cross-complaint against the appellee and one Barnett, conditional vendee of the vehicle, which alleged that the appellant held the automobile for a mechanic’s and repairman’s bill and storage lien ordered and authorized by the lawful owner, and praying a judgment for the amount of his bill and that the lien be foreclosed and the automobile ordered sold to satisfy the lien.
The trial court found for the appellee finance company, awarding nominal damages and possession of the vehicle.
The court made no finding on appellant’s cross-complaint. The Appellate Court nevertheless reviewed the case (98 N. E. 2d 925) pursuant to the provisions of Rule 2-8.
The appellant assigns as error the overruling of his motion for new trial, which specifies that (1) the decision and finding of the court is not sustained by sufficient evidence, and (2) the decision and finding of the court is contrary to law.
The evidence shows that on January 7, 1949, Otis Barnett purchased a 1941 DeSoto sedan from an Indianapolis automobile dealer, paying part cash and entering into a conditional sale contract with the seller for the balance. The conditional sale contract, which was immediately assigned by the seller to the appellee finance company, provides that the title to said motor vehicle shall remain in said seller or his assignee until the contract is fully performed, and that the vendee shall not attempt to sell or encumber said vehicle during the life of the contract. The contract is silent as to the making of repairs on the automobile or as to the maintenance of said vehicle, in good operating condition.
On January 11, 1949, Barnett’s application for title and his newly issued certificate of title both contained the conditional lien of the appellee finance company. The certificate of title was mailed to and retained by the company. Barnett used the car for pleasure purposes only.
In September, 1949, the automobile was taken to appellant’s garage and the repairs were ordered by Barnett. This was done without the knowledge or au thorization of appellee finance company. The cost of the repairs was higher than Barnett could pay and he notified the finance company that the car was held at the appellant’s garage for the repair bill, that he was defaulting on the contract and releasing all interest in the vehicle. Barnett did not advise the appellant of the existence of any lien on said vehicle when he ordered the repairs. The appellant did not ask him concerning that. The appellant made no attempt to ascertain whether such a lien existed.
At the time Barnett took the automobile to appellant’s garage he still owed the finance company more than $400 on the conditional sale contract. The repairs were extensive. Among other things the appellant tore down the engine and replaced the crank shaft. The repair bill was $206.33. On December 31, 1949, four months after the car was repaired, it was sold at public auction for $175.
The question presented is whether the appellee finance company was entitled to possession of the automobile by virtue of the fact that it held the conditional sale contract thereon, or whether the appellant, who was claiming possession by virtue of an unpaid repairman’s and mechanic’s lien on the automobile, was entitled to retain possession thereof.
There is no claim that the appellant relied upon or in any way undertook to secure or enforce a lien according to the provisions of Acts 1927, ch. 189, being Burns’ Stat., §43-801 et seq. He relies for reversal upon the proposition that Barnett, the conditional vendee, was the “owner” of the car, and the appellant therefore had a mechanic’s lien thereon because of the provisions of Acts 1925, ch. 213, §56, being Burns’ Stat., §47-552. That section provides in part that a mechanic who does repair work on an au tomobile at the request of the owner thereof is given a lien on the vehicle to the reasonable value of the charges for such labor, materials, storage or repairs, and if the charges are not paid within thirty days after the vehicle is left for repairs, the mechanic may advertise and sell the vehicle to the highest bidder for cash, deduct his charges and advertising costs and pay the overplus to the owner. That act provides in §1 thereof, that “ ‘Owner’ shall be construed to also include any person, firm, association or corporation renting or leasing a motor vehicle and having exclusive use-thereof for a period longer than thirty (30) days.”
To establish his status as the “owner” of the vehicle under §47-552 the appellant relies on Acts 1939, ch. 48, §11, being Burns’ 1952 Repl., §47-1811 (d), which defines the “owner” of a motor vehicle as follows:
“Owner. A person who holds the legal title of a vehicle, or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this act.” (Emphasis supplied.)
But that definition of “owner” is laid down for the express purpose of the 1939 Act, which act, as expressed in the title, is for the purpose of regulating traffic on highways, defining certain crimes in the use and operation of vehicles, and other related subjects. It has nothing to do with the 1925 Act concerning the lien of a mechanic for repairs to motor vehicles.
The definition of “owner” found in Acts 1945, ch. 304, §2(o), being Burns’ Stat., §47-2402 (o), is much like the definition of owner as found in §47-1811 (d) above referred to. It too is a definition of “owner” which has been furnished for the sole purpose of the Act of which it is a part, which Act creates a bureau of motor vehicles, and provides for the registration and licensing of vehicles and the operators thereof. No mention of liens of mechanics is made in either the title or body of the 1945 Act.
In construing statutes, words and phrases are given their plain, ordinary and usual meaning unless a different purpose is clearly manifest by the statute itself. R. L. Shirmeyer, Inc. v. Ind. Revenue Bd. (1951), 229 Ind. 586, 99 N. E. 2d 847. The word “owner” does not ordinarily include a conditional vendee. If it did, it would have been unnecessary for the legislature to define a conditional vendee as an “owner” in the enactments above mentioned. Recognition of the fact that a conditional vendee is not an “owner” is found in §2 of the Uniform Conditional Sales Act, Burns’ Stat., §58-802, which provides that the buyer “shall . . . have the right to acquire the property in the goods on the performance of the conditions of the contract.” We hold that Barnett, the conditional vendee, was not the “owner” of the automobile within the meaning of Acts 1925, ch. 213, §56, being Burns’ Stat., §47-552. See Hartford Accident & Indemnity Co. v. Spofford (1927), 126 Maine 392, 138 Atl. 769; General Motors Acceptance Corporation v. Sutherland (1932), 122 Nebr. 720, 241 N. W. 281; Cache Auto Co. v. Central Garage (1923), 63 Utah 10, 221 Pac. 862, 30 A. L. R. 1217. In Sundin v. Swanson (1929), 177 Minn. 217, 225 N. W. 15, relied on by appellant, the statute extended a lien right to those furnishing services at the request of the owner or legal possessor of any personal property. Similar provisions are found in the statutes of several states. It must be presumed that, had our legislature intended that others than owners should come within the protection- of §47-552, supra, it would have said so.
As above stated, the appellee finance company had no actual knowledge or notice of the making of the repairs. It did not expressly authorize or consent to the making of them. The appellant insists that his right to the satisfaction of his claim is superior to the rights of the appellee as conditional vendor, on the theory that the appellee impliedly consented to the making of the repairs.
As a general rule, the rights of an artisan making repairs to a chattel at the instance of the conditional vendee are subordinate to those of a conditional vendor. Partlow, etc., Car Co. v. Stratton (1919), 71 Ind. App. 122, 124 N. E. 470; General Motors Acceptance Corporation v. Sutherland, supra; Restatement “Security”, §76. But in some jurisdictions, including this one, it has been recognized, usually in chattel mortgage cases, that the rights of the artisan may be superior to those of the mortgagee where the mortgagor has impliedly consented to the making of the repairs. Personal Finance Company v. Flecknoe (1940), 216 Ind. 330, 24 N. E. 2d 694, and cases cited. Both parties to this appeal assert that the logic of the chattel mortgage- cases applies equally to conditional sale transactions so far as the element of implied consent is concerned, and it has been so held. Partlow, etc., Car Co. v. Stratton, supra; Hartford Accident & Indemnity Co. v. Spofford, supra.
In Personal Finance Company v. Flecknoe, supra, the authorities were reviewed and the following was evolved as the applicable rule of law in this jurisdiction:
“The majority of the courts have granted priority to the mechanic as against the mortgagee only in those cases (1) where the repairs would constitute a real benefit to the mortgagee by preserving the chattel covered by the mortgage, (2) where the mortgagee had a beneficial interest in the continued use of the mortgaged chattel and the repairs were necessary to such continued use, or (3) where the mortgagee had actual knowledge of the repairs being made or there were circumstances, or language in the mortgage, from which such knowledge could be presumed. An artisan claiming priority for his lien must bring his case within one of these classes. The burden is upon him to show facts from which the consent of the mortgagee may properly be implied.” p. 338, 339 of 216 Ind.
The chattel mortgage in that case was silent upon the subject of any repairs being made on the automobile, as was the conditional sale agreement in this case. The 1931 automobile involved in that case was “badly in need of repairs” and “could no longer be operated or driven about as an automobile.” The repair bill was $67.76. It was not paid. The mechanic retained possession of the car and the mortgagee filed suit to replevy it.
After announcing the rule above quoted, the court said:
“In the instant case the evidence fails to show such a benefit to the mortgagee as to justify the court in presuming its consent to the making of the repairs and to the subordination of the mortgage lien. There is no showing that the repairs were necessary to preserve the automobile for the mortgagee. The evidence did show that the repairs were necessary to the continued use of the automobile but there was no attempt to show that the continued use of the automobile would earn funds with which to pay the mortgage debt or would in any other manner benefit the mortgagee.
“The mere fact that it might be inferred that the repairs in question added some value to the automobile is not sufficient. If this were enough a mechanic might paint the automobile and add all new tires. This would undoubtedly increase the value of the automobile but the cost of such repairs made in 1937 on a 1931 automobile might well amount to more than the total value of the automobile after such repairs were made. To imply the consent of a mortgagee to the making of repairs which might cause him to have no margin of value left for his security would be beyond reason. The repairs must be reasonably necessary for the preservation of the automobile or necessary to a continued use in which the mortgagee has an interest.
“There is no contention in this case that the mortgagee had actual knowledge of the making of the repairs, nor is there any provision in the mortgage requiring repairs to be made by the mortgagor. It is contended by the appellee that since the automobile was left in the possession of the mortgagor it must be assumed that it would be used by him and that, therefore, his consent to the making of such repairs as were necessary to keep it useful must be assumed. With this contention we can not agree. To imply the consent of the mortgagee we must have a state of facts where we might assume that if the mortgagee knew all of such facts he would give his consent. It would be a violent assumption to assume that the mortgagee would consent to the making of repairs which might endanger his security when such repairs were only for the purpose of continuing a use in which he, as mortgagee, was not interested. Nor do the facts of this case require us to grant the mechanic priority for his lien on any ground of commercial convenience or necessity.”
We have quoted so extensively from the Flecknoe case because we feel that the language there used is peculiarly applicable to this case and that the application of that language to the facts of this case is decisive. It is apparent that the appellant has not brought his case within one of the classes outlined in the rule laid down in the Flecknoe case, and that the appellee can not be held to have impliedly consented to the making of the repairs.
There is one important difference, however, between the Flecknoe case and the case at bar. That case had to do with a chattel mortgage under a statute which fixed priorities, and the chattel mortgage in that case had been duly recorded prior to the making of the repairs. This case involves a conditional sale contract which was not recorded. Therefore, the constructive notice afforded by the recording of the mortgage in that case is absent here.
In adopting the Uniform Conditional Sales Act, the legislature of this state omitted that part of the Uniform Law which provides for the filing of conditional sale contracts. Compare Burns’ Stat., §58-801 to 829 with §5 of the Uniform Act as set out in 2 U. L. A. at p. 6. At common law, and in the absence of statute requiring it, the filing or recording of a conditional sale contract is not essential to its validity against third persons, and it is generally held that statutes which provide for the filing and recording of chattel mortgages, deeds of trust, and bills of sale do not require the filing or recording of conditional sale contracts. 78 C. J. S., Sales, §577, p. 300, and authorities cited.
But there are statutory provisions in Indiana which pertain especially to security interests in automobiles. Acts 1945, ch. 304, §11, being Burns Stat., §47-2501, provides for the issuance of a certificate of title upon application which shall contain a statement of any liens or encumbrances thereon. “The certificate of title shall be delivered to the owner (as defined in §47-2402 (o)) in the event no lien or encumbrance appears thereon. Otherwise the certificate of title shall be delivered to the person named to receive the same in the application for such certificate.” Sec. 15 of the Act, being Burns’ Stat., §47-2505, makes it unlawful for one having possession of a certificate of title by reason of having a lien or encumbrance thereon, to refuse to deliver such certificate to the owner upon the satisfaction or discharge of the lien or encumbrance.
It has been said this law was enacted for the protection of the owner of motor vehicles, of those holding liens thereon, and of the public. Guaranty Discount Corp. v. Bowers (1932), 94 Ind. App. 373, 158 N. E. 231; Nichols v. Bogda Motors (1948), 118 Ind. App. 156, 77 N. E. 2d 905. There can be no doubt that the above quoted provisions were intended to furnish a method whereby artisans, as well as owners, conditional vendors, mortgagees, prospective purchasers, and perhaps others could be protected in transactions involving motor vehicles. “Such certificates do not convey title and they are not conclusive proof of title in him who is therein- designated as the owner. Meskiman v. Adams (1925), 83 Ind. App. 447, 149 N. E. 93. They are, however, evidence of title upon which purchasers and others interested have come to put great reliance.” Nichols v. Bogda Motors, supra.
It is common knowledge that bankers and finance companies generally retain possession of the certificate of title upon which their interest in the vehicle is shown. They do so, of course, to avail themselves of the protection afforded them by the terms of the statute. Implicit in this legislation is the idea that when one in possession of an automobile is unable to exhibit a certificate of title therefor, artisans and others are put upon notice that the possessor of the vehicle may have no title thereto, or that his title may be subject to the prior rights and interests of others.
In this case Barnett did not have the certificate of title in his possession. He did not claim to have it. He was not asked whether he had it nor was he asked to produce it. The appellant made no effort to ascertain whether a lien existed. The appellee did everything it could do to protect itself and others. Availing itself of the law, it retained the certificate of title upon which its interest had been noted. If the appellee had not protected itself here, we know of no practical way under our law by which it could do so. The appellant failed to take the simple precaution of determining, at no inconvenience or expense to himself, whether he could safely invest time and materials in the automobile. We must hold that the appellant was chargeable with notice of the prior rights of the appellee finance company.
Even if it could be considered that the appellant is an innocent party despite his lack of care, we think the rule should prevail, as it has prevailed in the past in these cases, that where one of two innocent parties must suffer a loss, it must be borne by him whose act or omission made the loss possible. Nichols v. Bogda Motors, supra; Guaranty Discount Corp. v. Bowers, supra; LaPorte Discount Corp. v. Bessinger (1930), 91 Ind. App. 635, 171 N. E. 323; Universal C. I. T. Credit Corporation v. Walters (1949), 230 N. C. 443, 53 S. E. 2d 520. Or, as better stated to fit the circumstances of this case: “(W)here one of two innocent persons must suffer a loss, it should fall on him who, by reasonable diligence or care, could have protected himself, rather than on him who could not.” Nat. Savings Bank v. Creswell (1880), 100 U. S. 630, 25 L. Ed. 713.
We conclude that the rights of the appellant, under the issues joined and evidence presented, must be held inferior to those of the appellee, and that the judgment must be affirmed.
No question concerning the constitutionality of this statute has been presented or considered.
See 25 Ind. Law Journal, pp. 337, 339.
In Associates Investment Co. v. Shelton (1952), 122 Ind. App. 384, 105 N. E. 2d 354, the court said that a finance company, by failing to have its lien shown on the certificate of title, which would have safeguarded its interests, is estopped from asserting ownership and legal title against innocent purchasers.
In Central Finance Co. v. Garber (1951), 121 Ind. App. 27, 97 N. E. 2d 503, the certificate of title, bearing the assignment to the purchaser and showing appellant’s lien thereon was delivered to the purchaser of the vehicle. By erasing the lien and making a false affidavit the purchaser obtained a new certificate of title issued in his name which showed no lien. The purchaser sold to an innocent third party for value. Held that the appellant, having protected himself as best he could under the law, would prevail as against the innocent third party.
See exhaustive discussion of the problem at hand in Vol. 16 Law and Contemporary Problems, p. 197.
The annual volume of sales of these contracts to bankers, finance companies and others in Indiana approximates $100,000,-000. See Department of Financial Institutions v. Holt (1952), 231 Ind. 293, 108 N. E. 2d 629. | [
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Per Curiam.
In the first of the above captioned matters the petitioner, appearing pro se, files what he designates as a petition for alternative writ of mandamus to compel certain action by the Lake County Criminal Court.
In the second of the above captioned the petitioner, appearing pi'o se, files petition for writ of prohibition directed to the Judge of the Marion County Criminal Court, Division No. 2.
Although the matters are unrelated, the relief sought in each relates to a proceeding in an inferior court, but fails to comply with the requirements of Rule 2-35.
The issuance of the writ is therefore denied in each instance. Cole v. Baker, Judge (1951), 230 Ind. 174, 101 N. E. 2d 925.
Note.—Reported' in 110 N. E. 2d 745. | [
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Per Curiam.
The above matter purports to be a petition for writ of mandate. Rule 2-35 of this court, 1949 Revision, provides that petitions for writs of mandate shall be verified and filed in triplicate and if the relief sought relates to a proceeding in an inferior court, as does the petition herein, certified copies of all pleadings, orders and entries pertaining to the subject matter must be set out in the petition, or submitted as exihibits thereto. The petitioner herein has failed to comply with this rule and for that reason said petition is denied.
Note.—Reported in 110 N. E. 2d 745. | [
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Emmert, C. J.
This is an appeal from a judgment for the appellee on a complaint for a writ of habeas corpus. The assignment of errors alleges the trial court erred (1) “in failing and refusing to give appellant judgment on the pleadings upon proper motion therefor,” and (2) “in overruling appellant’s motion for a new trial;”
On January 20, 1949, the appellant Helen Marie Frick was divorced from her husband, Homer Frederick Frick, by decree of the Superior Court of Marion County, a certified copy thereof being introduced in evidence. This court in its decree awarded the custody of the minor children, Homer, Jr., age seven, and David William, age six, to appellant, and ordered the husband to pay to the clerk of the court the sum of $10.00 each week for the support of the children. Appellant asserts that this decree as to the custody of the children is conclusive on the appellee, with whom appellant had placed the children for care and support prior to the time of divorce, so long as the decree remains unmodified, and that the Cass Circuit Court was without jurisdiction to do more than enforce the decree of the Superior Court of Marion County.
If the action for habeas corpus had been between the parties to the divorce, then the Cass Circuit Court would have been concluded by the judgment of the Superior Court of Marion County. “When a divorce case is tried in an Indiana Court having
jurisdiction of the subject matter and parties, and the care and custody of the child or children are fixed in the decree rendered, the decree remains binding upon the parties and the courts until it is set aside or modified for cause shown, in a subsequent or supplemental proceeding in the same cause. State ex rel. Davis v. Achor, Judge (1947), 225 Ind. 319, 75 N. E. 2d 154, 157. Such decree cannot be modified or set aside by a collateral proceeding of habeas corpus even in the same court that rendered the decree, over the objection of either party. Leming v. Sale (1891), 128 Ind. 317, 27 N. E. 619; McDonald v. Short (1921), 190 Ind. 338, 343 et seq., 130 N. E. 536; Stone v. Stone (1902), 158 Ind. 628, 631, 632, 64 N. E. 86; Willis v. Willis (1905), 165 Ind. 332, 338, 339, 75 N. E. 655; Brooke v. Logan (1887), 112 Ind. 183, 186, 13 N. E. 669; Joab et al. v. Sheets (1884), 99 Ind. 328, 331, 332.” Scott v. Scott (1949), 227 Ind. 396, 402, 86 N. E. 2d 533. See also McDonald v. Short (1921), 190 Ind. 338, 345, 130 N. E. 536, and authorities therein cited. But in none of the cases holding the parties to a divorce are concluded by the decree as to custody do we find it squarely decided that the decree is binding on third parties not parties to the divorce proceedings. The appellee was not a party to the divorce action nor a party to the decree. Nor were the children parties to that action. Stone v. Duffy (1914), 219 Mass. 178, 182, 106 N. E. 595. The judgment fixing the custody of the children in appellant was not a judgment in rem, and therefore was not binding upon the appellee. Matter of DeSaulles (1917), 101 Misc. 447, 458, 459, 167 N. Y. S. 445. If the decree of divorce had placed the custody of the children with appellee a different question would have been presented.
But under the facts in this appeal we can see no reason for deciding as a matter of judicial policy that, in view of the paramount interest in the welfare of the children, we should decide that the appellee should be compelled to litigate the welfare of the children by intervening in the divorce proceeding, and filing a petition to modify the decree as to custody. When the trial court acquired jurisdiction of the children by virtue of the writ it had full and complete authority to award their custody as between the parties, as their welfare and best interests required. Johnson v. Smith (1931), 203 Ind. 214, 176 N. E. 705.
Where a writ of habeas corpus for children issues to obtain jurisdiction of the children, like the case now before us, “where the freedom of children is only technically involved, the writ is allowed, not merely to determine legal rights of custody as between applicants therefor, but to accomplish the best interests of the infants, and hence distinguishable from cáses involving unlawful imprisonment under color of claim of warrant of law. New York Foundling Hospital v. Gatti (1906), 203 U. S. 429, 27 Sup. Ct. 53, 51 L. Ed. 254; State, ex rel Evangelical, etc, Society v. White (1913), 123 Minn. 508, [144 N. W. 157]; Knapp v. Tolan (1915), 26 N. D. 23, 142 N. W. 915, 49 L. R. A. (N. S.) 83; State v. Bechdel, supra.” McDonald v. Short (1921), 190 Ind. 338, 343, 130 N E. 536, supra. The paramount interest is the welfare of the children. Johnson v. Smith (1931), 203 Ind. 214, 176 N. E. 705, supra; Thornton v. Devaney (1944), 223 Ind. 47, 57 N. E. 2d 579; Brown v. Beachler (1946), 224 Ind. 477, 68 N. E. 2d 915.
Appellant filed a reply to the appellee’s return to the writ. Thereafter appellant filed a motion for judgment in hef favor on the pleadings, which motion was overruled. By her return appellant brought the children under the jurisdiction of the court and raised the issue 6f the welfare of the children and the fitness of both parties seeking custody. The Cass Circuit Court had jurisdiction to act for the best welfare of the children, and it was not limited as to its jurisdiction or inquiry by the technical sufficiency of the return. Johnson v. Smith (1931), 203 Ind. 214, 219, 176 N. E. 705, supra. By the return, the children were “in the custody of the court, subject to its disposition, uncontrolled by the averments of the return. Bullock v. Robertson (1902), 160 Ind. 521, [65 N. E. 5] ; Glansman v. Ledbetter (1921), 190 Ind. 505, 130 N. E. 230; Buck, Gdn. v. Squires (1924), 194 Ind. 112, 142 N. E. 7.” Mesmer v. Egland (1926), 197 Ind. 700, 702, 151 N. E. 826. The motion for judgment on the pleadings was properly overruled.
On appeal we presume the record of the trial couft is free from harmful error. Johnson v. Smith (1931), 203 Ind. 214, 221, 176 N. E. 705, supra. If there is evidence to support the finding in a habeas corpus proceeding we will not disturb the judgment. Mahan v. Hendricks (1912), 181 Ind. 630, 99 N. E. 418. It is only when there has been a clear abuse of discretion by the trial court that the judgment will be set aside. Thornton v. Devaney (1944), 223 Ind. 47, 57 N. E. 2d 579, supra. We have carefully examined the entire record in order to satisfy ourselves that the welfare of the children was adequately protected.
Appellant and Homer F. Frick were married in 1938, and had four children, Sharon .Marie, Ronald, now the adopted children of the father’s brother and sister-in-law, and Homer F. Frick, Jr. and David William Frick who are the children involved in this controversy. It is difficult for mere words to detail the full picture of the tragic neglect suffered by the small children when in appellant’s care. In 1941 the father had furnished the home with new furniture. He was with the armed forces during the war, and when he returned from the service in November, 1945, there was no mattress on the beds for the children and no fuel in the home. There was a hole in the wall of the house, plaster and paper had been torn off, and there were some dead dogs on the back porch. The .father bought coal and $160 worth of clothes for the children.
The father and mother were having domestic difficulties and he commenced a divorce action in Cass County, which he later dismissed, but while it was pending he paid $16 a week for the support of the children, and this payment continued until appellant no longer had the children.
At the request of appellant, appellee took custody of Homer, Jr. on April 21, 1946, and David William on June 2, 1946, after appellant had orally agreed they could be adopted by appellee. After the children had been in the home of appellee, appellant executed her consent to their adoption, but appellee did not complete the adoption and in June, 1950, appellant withdrew her consent.
At the time appellee took the children, appellant’s home was dirty and unkempt. A davenport in the living room had been partially destroyed. The children were dirty, undernourished and had rickets. They were about the house half clothed, or naked. Homer had been burned with lye, and this injury was not being bandaged properly. Appellee secured clothes for them from some of her friends.
After appellant had placed these children with appellee, and the other brother and sister with the Fricks, she moved to Indianapolis where she resided with her father. The same day she was divorced she remarried. She now lives in a two room apartment in an industrial neighborhood of Indianapolis. There is no near place suitable for children to play. Appellant’s rooms are dirty and in disorder. The record discloses nothing as to the suitability of appellant’s present husband to be a good foster parent.
The evidence is uncontradicted that appellee has given good care and training for the children. They are well behaved, in good health, attend common school which is near their home, and receive proper religious training every week. They have a good yard in which to play and visit with their other brother and sister.
The evidence amply sustains the trial court’s finding. The motion for new trial was properly overruled. Judgment affirmed.
Note.—Reported in 109 N. E. 2d 905.
The material part of the finding, and the judgment are as follows:
“And the Court now finds that the welfare and best interests of said children will be served by allowing them to remain in the home of and under the care and custody of the defendant, Geneva Kleinman.”
“It is therefore considered and adjudged that the custody of said Homer Frederick Frick and David William Frick remain with the defendant, Geneva Kleinman, and that she be awarded their custody, all until the further order of this Court.”
In Scott v. Scott (1949), 227 Ind. 396, 86 N. E. 2d 533, we held that a decree of another state fixing custody of the children of the parties was not conclusive upon courts of this state when the issue of custody was raised by complaint for a writ of habeas corpus, and that the full faith and credit clause of the Federal Constitution did not prohibit the courts of this state from making their own adjudication on custody as affected by a change of conditions subsequent to the divorce decree. See also White v. White (1938), 214 Ind. 405, 15 N. E. 2d 86.
Where parents to the divorce decree become unfit for the trust imposed in them by the court, interested third persons by petition may intervene in behalf of the children. Stone v. Duffy (1914), 219 Mass. 178, 181, 106 N. E. 595.
when the Cass Circuit Court entered its final judgment, it did not retain continuing jurisdiction thereafter to modify its judgment as to the custody of the children. Armstrong v. Vancil (1942), 169 Ore. 320, 128 P. 2d 951; Gray v. Gray (1920), 121 Miss. 541, 83 So. 726; In re Winn (1936), 48 Ariz. 529, 63 P. 2d 198. | [
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"Gilkison, J.\nThis is an appeal from a judgment rendered in the Elkhart Superior Court against appe(...TRUNCATED) | [-0.0486617311835289,0.02432090789079666,-0.05146169289946556,0.009707589633762836,0.026482840999960(...TRUNCATED) |
"Emmert, J.\nThis appeal comes to this court by way of transfer from the Appellate Court under §4-2(...TRUNCATED) | [-0.003165972651913762,-0.010146895423531532,0.008812525309622288,-0.0022297340910881758,0.063251942(...TRUNCATED) |
"Jasper, C. J.\nThis is an appeal from a judgment denying a petition for a writ of habeas corpus.\nA(...TRUNCATED) | [-0.028286928310990334,-0.011672187596559525,-0.005428399424999952,-0.0036343703977763653,0.06102166(...TRUNCATED) |
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