Slike stranica

Appellee Fannie Wheatcraft, at the time Tilton, and that for this reason the demurrer of the execution of such deed, was unmar- thereto should have been sustained. ried and was the only child and heir of the [2] Appellant's contention that a complaint grantor. Appellee Grace Wheatcraft was in which more than one plaintiff joins must then in life and was the only child and heir state a cause of action in favor of all the of said Fannie.

parties joining therein to make it sufficient In March, 1905, Eliza J. McAlpin died in- against a demurrer for want of facts is suptestate, leaving said Fannie as her only ported by authority. Darkies v. Bellows, 94 child and heir. On the 24th day of April, Ind. 64, 66; Holzman v. Hibben et al., 100 1905, said trust deed was recorded in deed Ind. 338, 339, 340; McIntosh v. Zaring, 150 record-in Marion county, Ind.

Ind. 301, 313, 49 N. E. 164, and authorities On the 18th day of December, 1909, Grace there cited; Swales v. Grubbs, 6 Ind. App. Wheatcraft was married to David R. Tilton, 477, 480, 33 N. E. 1124. and on the 23d day of March, 1910, she and [3] It is insisted that the complaint shows her mother, Fannie, joined in a petition filed that Fannie Wheatcraft was unmarried and in the Marion circuit court in which they, that the words "child" or "children," as used for the reasons therein set forth, asked a in the deed here involved, means the legitiremoval of said trustee.

mate child or children of said Fannie, and [1] To this petition appellant filed a veri- that the complaint therefore shows upon its fied plea in abatement in which he alleged face that Grace Tilton has no interest in that he was then, and for more than 20 years the trust involved, and hence no cause of acprior thereto had been, a resident of John- tion was stated in her favor. “It is a rule of son county, Ind. To this plea a demurrer construction that prima facie the word 'child' for want of facts was sustained, and such or children,' when used either in a statute ruling is assigned and relied on as error. A or will, means legitimate child or children." demurrer to the complaint and separate de McDonald v. Pittsburgh, etc., R. Co., 144 murrers to each of the several grounds for Ind. 459, 461, 43 N. E. 447, 32 L. R. A. 309, removal numbered 2, 3, 4, 5, 6, 8, 11, and 12 55 Am. St. Rep. 185; Jackson v. Hocke, 171 were each overruled, and to each ruling ap- Ind. 371, 373, 84 N. E. 830, and authorities pellant saved proper exceptions. These rul- there cited. In the complaint before us, ings are also assigned as error and relied on however, it appears by necessary inference for reversal. An answer in denial, three that Grace Tilton was in being when Eliza paragraphs of affirmative answer, and a McAlpin made the deed in question. reply in denial closed the issues. There was Section 2998, Burns 1908, provides: "Illea trial and a general finding for appellees gitimate children shall inherit from the and that appellant be removed. A motion mother as if they were legitimate, and for new trial was overruled, and this ruling through the mother, if dead, any property is assigned and relied on as error. The or estate which she would, if living, have question presented by the ruling on the de- taken by gift, devise, or descent from any murrer to the plea in abatement requires us other person.” to determine whether the place of residence Mrs. McAlpin, having made the deed in of the trustee controls the question of juris- question after the birth of her grandchild, diction in such cases.

Grace, she will be presumed to have made The real estate in which the trust was it both with reference to the existence of created and over which the trustee, as such, such grandchild, and the statute above quotwas to exercise management and control ed governing the descent of property in such was in Marion county. The deed creating cases. It is further insisted by appellant the trust was recorded in Marion county. that by the terms of the deed in question the The petition sought the removal of the trus- appellee Grace, at the time of the filing of tee and nothing more. It did not ask a per- the petition herein, had no vested interest sonal judgment against appellant, and ten- in the remainder in the fee, but only a condered no issue that in any way affected his tingent remainder therein, and that for this person or property, but sought only to relieve reason the complaint fails to show a cause the trust estate of appellant's management of action in her. and control.

[4, 5] The law favors the vesting of reThe facts averred in the petition and the mainders at the earliest possible moment relief sought therein bring it within the gen-(Alsman v. Walters, 101 N. E. 117, 119, and eral rule which gives jurisdiction of a trust authorities there cited); but whether, by the to a circuit court of the county in which it provisions of the deed in question, the interis created. Sections 4023, 4039, and 4040, est of appellee Grace in the real estate be Burns 1908; Thiebaud v. Dufour, 54 Ind. treated as vested, or contingent only, the 320, 327; Tucker et al. v. State, 72 Ind. 242, complaint shows that she had such an in246; Hinds v. Hinds, Ex'r, 85 Ind. 312, 316; terest in the subject of the action as entitled Preimer Steel Co. v. Yandes, 139 Ind. 307, her, under section 263, Burns 1908, to join 316, 38 N. E. 849.

as a plaintiff. It is urged against the complaint that it [6] It is urged against the ruling on the does not state facts sufficient to constitute a separate demurrers to the several grounds cause of action in favor of appellee Grace alleged for the removal of the trustee that neither of them show any cause for removal verse, in a petition to remove the trustee, in favor of Grace Tilton, and that therefore and they may jointly allege any violation of . the separate demurrer to such grounds should duty by the trustee which furnishes suffihave been sustained. This contention is cient ground for his removal, though such specially made with reference to grounds 2 violation may have directly affected one only and 3. These grounds are as follows: of the parties joining. Of course, in an ac

“(2) He has not paid to Fannie Wheatcraft tion to recover damages resulting from the the rents ‘of said real estate annually, as violation of the duty, an entirely different provided in said deed of trust.'

question would be presented. In support of “(3) He has not accounted to Fannie our conclusion on this question see Gartside Wheatcraft ‘for the net rents and profits of v. Gartside, 113 Mo. 348, 358, 20 S. W. 669. said real estate annually as provided in said Finally it is insisted in effect that the deed of trust.'

complaint, and each of the grounds thereof, Assuming, without deciding, that appel-fails to state a cause of action in favor of lant is correct in his contention that these either of the appellees because the trust esseveral grounds for removal should be treat- tate is not shown to be in jeopardy, and ed as separate paragraphs of a complaint, no “actual dishonesty or incompetency on and that each ground should be sufficient as the part of appellant” is shown. to each plaintiff, we must determine whether [7] It is true, as appellant contends, that the respective grounds stated afford a cause it is not every violation of duty, or mismanof removal in favor of Grace Tilton. It is agement on the part of the trustee, that will true in a sense that such appellee was not necessitate his removal, especially where the directly harmed by appellant's failure to ac- trust fund is in no danger of being lost on count to her coappellee, the life tenant, for account of such breach of duty. Perry on the annual rents and profits of said real es- Trusts (5th Ed.) 8 276; Am. & Eng. Enc. L. tate, but we must not lose sight of the na- (2d Ed.) vol. 28, p. 979. It seems clear, ture and character of the action here involv- however, under our statute and from all the ed. The only purpose of the action is the decisions, that, if the breach of the trust removal of the trustee on account of a breach relied on endangers or impairs the trust of his trust.

fund, it will furnish a sufficient ground for Section 4023, Burns 1908, provides as fol- removal. Am. & Eng. Enc. L. (2d Ed.) vol. lows: "Trustees having violated or attempt. 28, pp. 978 and 979; Grand Rapids, etc., Co. ed to violate any express trust, or becoming v. Cox, 8 Ind. App. 29, 35 N. E. 183, and insolvent, or of whose solvency or that of authorities there cited; N. C. R. V. Wilson, their sureties there is reasonable doubt, or 81 N. C. 223-230. for other cause in the discretion of a court

[8] The use of the trust estate by the having jurisdiction, may, on petition of any trustee for his own benefit or any neglect person interested, after hearing, be removed or mismanagement, which impairs or jeoparby such court, and all vacancies in express dizes such estate, will furnish sufficient trusteeships may be filled by such court." ground for removal. Am. & Eng. Enc. L. vol. (Our italics.)

28, supra; Gartside V. Gartside, supra; N. Both the life tenant and the remainder- C. R. Co. v. Wilson, supra, 81 N. C. 230; man are interested in a faithful performance Piper's Appeal, 20 Pa. St. 67; Wilson v. Wilof the trust and the proper management and son, 145 Mass. 490, 14 N. E. 521, 1 Am. St. preservation of the trust estate, and we are Rep. 477; section 4023, R. S. 1908. of the opinion that the section of statute The complaint and the several grounds for just quoted authorizes a joint ground for re- removal therein stated, to which a demurrer moval which shows a breach of the trust by was overruled, fully meet the requirements the trustee 'which injuriously affected one of the decisions cited and the principles of cestui que trust alone; and, if such breach law announced therein. The only grounds be a sufficient cause for removal by such of the motion for new trial discussed in apcestui que trust, it will inure to the bene- pellant's brief are those alleging that the defit of his copetitioners and be treated as a cision is contrary to law, and that it is not sufficient ground of removal in favor of them. sustained by sufficient evidence. Practically It must be remembered that it is the breach the same questions are raised that we have of the duty and its effect on the trust es- already discussed in connection with the tate, and not the extent of its effect on any complaint, and no necessity is indicated for one cestui que trust, that furnishes the cause their further discussion in this connection. of action or ground of removal, and such re- There is evidence tending at least to supmoval by one necessarily operates as a re-port several, if not all, the grounds for removal for all. For these reasons we think moval to which the demurrer was overruled. any cestui que trust may join with another We find no error in the record. cestui que trust, whose interest is not ad- Judgment affirmed.

(53 Ind. App. 518)

FELT, P. J. This is a suit by the appelWESTERN INS. CO. V. ASHBY. (No. lee against the appellant to recover upon an 8,004.)

insurance policy for the loss by fire of cer(Appellate Court of Indiana, Division No. 1. tain personal property. June 5, 1913.)

[1] Trial by jury resulted in a verdict for 1. APPEAL AND ERROR ($ 757*)—BRIEFS-SUF- appellee in the sum of $2,500. From a judg.


ment on the verdict the appellant has apUnder court rule 22 (55 N. E. v), providing pealed, and in his brief states as to the first that briefs shall contain a concise statement of error relied on that the appellee's complaint so much of the record as fully presents every does not state facts sufficient to constitute error and exception relied on, an appellant, whose briefs failed to state the substance of a cause of action. Neither the complaint pleadings complained of or testimony objected nor the substance thereof is set out in the to, waives the errors complained of.

brief. Furthermore the only defect suggest[Ed. Note. For other cases, see Appeal and ed in appellant's brief appears to be without Error, Cent. Dig. $ 3092; Dec. Dig. $ 757.*] foundation for appellee shows that the ap2. INSURANCE (8 310*)-CONDITIONS-INVA-parent defect has been cured by the return LIDITY.

Provisions in a fire policy that it shall be to a writ of certiorari duly issued on order void upon breach of certain conditions merely of this court. allow it to be avoided at the option of the Appellant also states in its brief that the insurer, who must, after notice of the breach, court erred in overruling its separate deact with reasonable promptness, notify the insured of its election, and tender back the un- murrer to the second and fifth paragraphs earned premium.

of appellee's reply to its second, third, and [Ed. Note. For other cases, see Insurance, fourth paragraphs of answer. But neither Cent. Dig. 88 703, 761, 780, 826, 840, 904; the replies nor the demurrers are set out Dec. Dig. § 310.*]

in the briefs, nor is the substance thereof 3. INSURANCE (8 95*)-FIRE INSURANCE-IN

stated. SURANCE BROKERS. An insurance broker, acting within the

Appellant also claims the court erred in scope of his authority, is the agent of the com- overruling its motion for a new trial. From pany from which he secures insurance, and his the briefs we learn that a new trial was knowledge relating to the risk is binding on the company, though not communicated to it.

asked because the verdict of the jury is not [Ed. Note. For other cases, see Insurance, sustained by sufficient evidence, and is conCent. Dig. $8 96-113, 125; Dec. Dig. $.95.*j trary to law; that the damages assessed by 4. INSURANCE (8 396*)-FIRE INSURANCE- the jury are excessive; that the court erred LOSS-WAIVER.

in giving to the jury certain instructions and Where fire insurance company has

has in refusing to give certain instructions tenknowledge of facts which will enable it to declare the policy void, and it requires proof of dered by appellant; also that the court erred loss, failing to give timely notice of its election in admitting in evidence the testimony of the

, to avoid the policy, it waives the right to de- appellee, in which she related a conversation feat a recovery for those reasons.

between herself and an insurance broker [Ed. Note.-For other cases, see Insurance, Cent. Dig. $$ 1071-1077; Dec. Dig. § 396.*j. nanied Kehoe, who solicited the insurance, 5. INSURANCE (8 665*)–FIRE INSURANCE-LI- delivered the policies, and collected the preABILITY.

miums. In an action on a fire policy, evidence held Appellant has not set out either the insufficient to sustain a finding that the insurer structions given or refused or the substance had waived the breach of conditions which entitled it to avoid the policy.

thereof. Rule 22 (55 N. E. v) is plain and [Ed. Note. For other other cases, see Insur- definite, and its purpose and scope has been ance, Cent. Dig. $$ 1555, 1707-1728; Dec. stated in many decisions. 8

. Litigants who Dig. § 665.*]

wholly ignore the rules of the court cannot 6. INSURANCE (8 378*)-FIRE INSURANCE-expect the court to search the record for EVIDENCE-ADMISSIBILITY.

In an action on a fire policy, where the errors they have failed to present. In this insurer set up as a breach of conditions that case appellant has almost wholly ignored the plaintiff's title to the property was not abso- rules and thereby waived the errors, if any, lute, evidence of the knowledge of the broker it desires to have considered. Chicago, etc., plaintiff's title is admissible, because his knowl-Co. v. Walton, 165 Ind. 253, 74 N. E. 1090; edge must be imputed to the company.

Schrader v. Meyer, 48 Ind. App. 36, 95 N. E. [Ed. Note. For other cases, see Insurance, 335; Webster v. Bligh, 98 N. E. 73.

Cent. Dig. $$ 968–997; Dec. Dig. § 378.*] Appellee' has set out in her briefs much Appeal from Circuit Court, Allen County : sufficient to enable us to consider the ques

of the evidence given at the trial, which is E. O'Rourke, Judge. Action by Leona Ashby against the West- tions on the motion for a new trial which

relate to the sufficiency of the evidence to ern Insurance Company. From a judgment

sustain the verdict, and the assignment that for plaintiff, defendant appeals. Affirmed.

the verdict is contrary to law; also the Robert B. Dreibelbiss and H. I. Smith, admissibility of part of appellee's evidence both of Ft. Wayne, for appellant. Howard as above shown. The evidence tends to show L. Townsend and Elmer Leonard, both of Ft. that appellee was the owner of a large Wayne, for appellee.

amount of household goods and furniture in


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the city of Ft. Wayne, of the probable value , timony. He also stated that he knew what of $7,000; that on the 10th day of February, the property was at the time the policies

$ 1909, she procured two policies of fire insur- were written, and that each of said policies ance, each for $2,500, one of which was 'is covered the same property; that by an oversued by appellant and the other by the Hum- sight he failed to insert in the policy permisboldt Insurance Company; that each of said sion to carry other insurance, but that it policies was written by Walsh and Kierspe, ought to have been inserted, and it was insurance agents for said companies; that by his mistake the clause was omitted from one Kehoe was engaged in the insurance the policy in suit. business, and solicited appellee to insure her There was no evidence tending to show said property, and at the time learned from that the appellant had at any time either her that a part of the property owned by before or after the fire offered to cancel the her which was to be insured had been pur- policy, rescind the contract, or return any chased by her on the installment plan, and portion of the premium received. The policy that she did not then have an absolute title in suit contains provisions declaring it void thereto; that said Kehoe procured the pol- if the insured is not the absolute and unicy in suit from said agents of appellant, conditional owner of the property insured, delivered the same to her, and received from or if she has or obtains other insurance withher the premium of $50, out of which he out the insurer's consent. Appellee does not was paid a commission by said agents; that dispute these propositions, but claims apsaid Kehoe had, for some time prior to this pellant had knowledge of her title and of transaction, obtained insurance for appellant the other insurance, and, after obtaining such through said agents in the same way this in- knowledge, issued the policy, collected and surance was procured; that appellee made no retained the premium, and after the loss representations as to her title to said property, occurred not only required her to make proof except the statement aforesaid, and no further of the loss, but, after several weeks of delay, information was sought from her; that appel- to furnish additional proofs, which she did. lant was in no way misled or deceived by any [2] The doctrine is well established in this statements or representations made by her; state that a provision in such policy, renderthat appellant's agents had knowledge of ing it void upon certain conditions, means the character of appellee's title to the prop- voidable at the option of the insurer, and erty insured at the time the policy was is that to render it void, upon discovery of the sued; that the policy had been in force facts by which liability may be avoided, it almost two years at the time the fire oc- must act with reasonable promptness, must curred; that shortly after the fire occurred notify the insured of its election to avoid the an adjuster of appellant called upon appel- policy, tender back, or in some appropriate lee, looked over the property, and was by way restore, or offer to restore, the unearned the appellee fully advised as to the char- premium received, and upon failure so to do acter of her title to the property, and he will be deemed to have waived the right thereafter directed her to protect the prop- to so declare the policy void, and to have erty not wholly destroyed by fire, and to elected to treat it as a valid contract of inmake an invoice of the property injured and surance. Glens Falls Ins. Co. v. Michael, destroyed; that proofs were forwarded to 167 Ind. 659–678, 74 N. E. 964, 79 N. E. 905, the companies in accordance with such re-8 L. R. A. (N. S.) 708; Ohio Farmers' Ins. Co. quest, and later appellant claimed the proof v. Vogel, 166 Ind. 239-244, 76 N. E. 977, 3 of loss was insufficient, and made a request L. R. A. (N. S.) 966, 117 Am. St. Rep. 382, 9 that appellee furnish additional proof, which Ann. Cas. 91; Metropolitan Life Ins. Co. v. she did, and also made demand for payment; Johnson, 94 N. E. 785; U. S. Health & ACthat appellee had nothing to do with the des-cident Ins. Co. v. Clark, 41 Ind. App. 345ignation or selection of the companies in 351, 83 N. E. 760. which her insurance was written, and when [3] It has been held in this state that an said Kehoe delivered the policies, she ac- insurance broker, acting within the scope of cepted the one in suit and the one issued by his authority, is the agent of the company the Humboldt Insurance Company for a like from which he secures insurance, and that amount, and paid him the premiums there his knowledge relating to the risk is bindfor; that she did not read the policies or ing on the company, though not communicatknow anything about the conditions they con-ed to it. German Fire Ins. Co. v. Greenwald, tained.

99 N. E. 1011, and cases cited. George Kierspe testified that he was one [4] Where an insurance company has knowlof the agents of appellant in Ft. Wayne; edge of facts which would enable it to dethat Kenoe brought the insurance to his clare the policy void and a loss occurs, by agency, and they paid him the regular com- requiring proof of loss and failing to give mission on the business; that he issued both timely notice to the insured of its election policies at the same time and was agent for to avoid the policy it waives the right to deboth companies; that both policies were de- feat a recovery on the policy by reason of livered to Kehoe as aforesaid.

such facts. Replogle v. American Ins. Co., William Walsh testified that he was the 132 Ind. 360, 367, 31 N. E. 947; Home Ins.

[ocr errors]

633; Phenix Ins. Co. v. Boyer, 1 Ind. App. The complaint was in four paragraphs, to 329, 27 N. E. 628.

each of which appellant's separate demurrers [5] From the evidence in this case it is were overruled. Answer in general denial. clear that the jury were warranted in find- Appellant Tash

Tash filed a cross-complaint ing that appellant had waived any condition against Miller and Miller to foreclose a mein the policy by which it might have avoided chanic's lien against them on an account he liability. Where this is done the policy will claimed was owing him by Charles G. Miller, be enforced the same as if such provisions which was answered in general denial. were not in the policy. Ohio Farmers' Ins. Upon request, the court made a special Co. v. Vogel, supra.

finding of facts and stated conclusions of law [6] The knowledge of the broker relating thereon as follows: to facts affecting the validity of the policy

(1) That appellee is entitled to a personal issued by appellant to the appellee being im- judgment of $429.19 (principal and interest) puted to the company, it follows that the against Charles G. Miller, and $55 attorney's court did not err in permitting appellee to fees, also foreclosure of the mechanic's lien testify to facts showing his knowledge of against Henrietta Miller and Charles G. Milher title before the policy was either writ- ler as to that part of the real estate deten or delivered.

scribed in finding No. 30. No available error is shown by the briefs.

(2) That cross-complainant John W. Tash The presumption is in favor of the judgment is entitled to a personal judgment of $84.29 of the lower court, and substantial justice (principal and interest) against Charles G. appears to have been done between the par- Miller and $15 attorney's fees; also foreties.

closure of his mechanic's lien against HenriJudgment affirmed.

etta Miller and Charles G. Miller upon that .

part of the real estate described in finding (53 Ind. App. 501)


(3) That Henrietta Miller is entitled to CO. (No. 8,010.)

have all of her real estate, except the part (Appellate Court of Indiana, Division No. 1. described in finding No. 30, released from the

lien of said mechanic's lien and recover her June 4, 1913.) 1. APPEAL AND ERROR (8 706*)_RECORD-NE-costs; that all costs are to be taxed against CESSITY OF EVIDENCE.

Charles G. Miller and declared a lien upon The evidence is not in the record so as the real estate described in finding No. 30. to authorize a review of the action of the court

Judgment was rendered accordingly. in overruling a motion for a new trial, on the ground of insufficiency of the evidence, where

The errors assigned are the overruling of no reference is made in the brief to the filing appellant's motion for a new trial and error of of the bill of exceptions and no order. book the court on its conclusions of law upon the entry of the filing of the bill is shown in the

facts found. record, and the certificate of the clerk fails to

In support of the motion for show that a bill of exceptions was filed.

a new trial it is insisted that the decision [Ed. Note. For other cases, see Appeal and of the court is not sustained by sufficient Error, Cent. Dig. $$ 2944–2947; Dec. Dig. 8 evidence and is contrary to law. 706.*]

[1] Appellee earnestly insists that any 2. APPEAL AND ERROR (8 731*)-ASSIGNMENT question presented by the motion for a new OF ERROR-CONCLUSIONS OF LAW. Where the assignment of error to the con

trial cannot be considered by this court for clusions of law is general, if any of the conclu- the reason that the evidence is not in the sions are correct, there is no available error. record. No reference is made in the brief to

[Ed. Note. For other cases, see Appeal and the filing of a bill of exceptions. Error, Cent. Dig. $3017–3021; Dec. Dig. $nation of the record shows no order book

An exami731.*]

entry of the filing of the bill of exceptions ; Appeal from Circuit Court, Howard Coun- neither does the certificate of the clerk cure ty; William Purdum, Judge.

the imperfection or show that a bill of excepSuit by the Armstrong-Landon Company tions was filed. Under numerous decisions against Henrietta Miller and another. From of this as well as the Supreme Court, it must a judgment for plaintiff, defendants appeal. be held that the evidence is not in the record. Affirmed.

Dreyer v. Hart, 147 Ind. 604, 709, 47 N. E. Milton Bell and Jos. C. Herron, both of 174; Board, etc., v. Huffman, Adm'r, 134 Ind. Kokomo, for appellants. Blacklidge, Wolf & 1, 31 N. E. 570; De Hart v. Board, etc., 143 Barnes, of Kokomo, for appellee.

Ind. 363, 41 N. E. 825; Elrod v. Purlee, 165

Ind. 239, 73 N. E. 589, 74 N. E. 1085; MCSHEA, J. Suit by appellee to foreclose Cormick Harvesting Co. v. Smith, 21 Ind. a mechanic's lien against appellants Henriet- App. 617, 619, 52 N. E. 1000, and authorities ta Miller and Charles G. Miller. Appellant cited; Kelso v. Kelso, 16 Ind. App. 615, 44 John W. Tash was made a party to the ac- N. E. 1013, 45 N. E. 1065. tion to answer as to any interest he might [2] It is earnestly urged by appellee that have or claim in the property subject to the the assignment of error as to the conclusions lien,

of law is general, and therefore, if any one

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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