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(57 Ind. App. 158)
TEEGARDEN et al. v. RISTINE. (No. 8890.)
(Appellate Court of Indiana, Division No. 1.
Nov. 6, 1914.)

1. APPEAL AND ERROR (§ 757*)—WAIVER OF
ERROR.

in one paragraph, and charges, in substance, that on December 27, 1911, appellee was the owner of 26 acres of real estate, describing it; that appellee was a widow, ignorant and unlearned in business affairs, and especially so in matters of a legal nature; Where the demurrers or the substance that Noah M. Teegarden, one of the appelthereof are not set out in the brief, the suffi-lants herein named, is a practicing attorney ciency of the complaint is not presented. [Ed. Note.-For other cases, see Appeal and at law and a real estate agent, and appellant Error, Cent. Dig. § 3092; Dec. Dig. 8 757.*] Alice Teegarden was his wife; that after 2. ATTORNEY AND CLIENT (§ 123*)-TRANSACTIONS BETWEEN-CONSTRUCTIVE FRAUD-FIDUCIARY RELATIONS.

Where defendant, who was attorney for plaintiff, a widow inexperienced in business, in the settlement of her husband's estate and in a partition of his lands, and her agent to sell her interest after the partition, which was then worth $1,690, falsely represented that, unless some disposition was made, a mortgage thereon would be foreclosed, and that there would be judgments against her, and advised her to sell it, and offered to purchase it for $1,100, representing that it was worth no more, in reliance upon which plaintiff executed a deed to his wife, there was a breach of duty which, even though without fraudulent intent, amounted to a constructive fraud, giving plaintiff a right of action to set aside her conveyance. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 239-245, 248, 249; Dec. Dig. § 123.*]

the death of appellee's husband she had employed Noah M. Teegarden to act as her attorney in the settlement of her husband's estate, and in other matters; that she had implicit confidence in his integrity, and relied upon him as her attorney and sole legal adviser; that said Noah M. was for a long time prior to June 27, 1911, engaged in the business of selling and trading real estate on commission; that prior to said date appellee placed her said land in his hands, as such agent, for sale, and he advertised it and undertook to sell it; that while he was acting as such agent he induced the plaintiff to execute a deed for said real estate to the

appellant Alice M. Teegarden, his wife; that said appellant Noah M. represented to ap pellee that a certain mortgage on her prop

3. ATTORNEY AND CLIENT (§ 123*)-TRANSAC-erty was about to be foreclosed, and that TIONS BETWEEN - CONSTRUCTIVE FRAUDPARTIES LIABLE.

In such case the wife of the attorney, who had paid no consideration for the conveyance to herself, and who had no knowledge of the transaction, was liable in the same action.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 239-245, 248, 249; Dec. Dig. § 123.*]

4. CONTRACTS (§ 88*) - ACTION - BURDEN OF

PROOF.

Where a confidential relation exists, and it is claimed that the party occupying the superior position has dealt with the one to whom he owes a duty arising out of such relation and has gained a substantial advantage thereby, the burden is upon him to show that he acted in good faith, gave the other party full and accurate information possessed by him, took no advantage of his knowledge or influence, and that the transaction was equitable, voluntary, and

well understood.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 403-405, 407; Dec. Dig. § 88.*] 5. TRIAL (8 405*)-CONCLUSIONS OF LAWEXCEPTION-EFFECT.

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By excepting to the conclusions of law appellants concede that the facts are fully and correctly found within the issues.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 963-965, 967; Dec. Dig. § 405.*]

Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge.

Action by Edna M. Ristine against Alice Teegarden and others. Judgment for plaintiff, and defendants appeal. Affirmed.

V. E Livengood, of Covington, for appellants. Fred S. Purnell, of Attica, for appellee.

certain of her creditors were about to file suits and take judgments against her; that unless she made some immediate disposition of her property, or immediately raised sufficient funds with which to pay her indebtedness, all of her interest in and to said property would be lost; that she had no other property with which to pay her debts; that, by reason of the relation of attorney and client which existed between her and said Noah M., she believed his statements to be true, and that it was necessary to immediately dispose of her property; that she then asked said Noah M. what she should do, and he advised her to sell said real estate, which she agreed to do; that said Noah M. then informed her that he would purchase it and would assume the mortgage against the land in the sum of $600 and pay her the sum of $500 in cash; that he represented to her that her property was not worth more than $1,100, and that she would be making a good sale to sell it at that price; that she relied on his statements and advice, and, believing that said property was not actually worth more than $1,100, and trusting in him as her attorney, informed him that, if he thought best, she would close the transaction suggested by him; that said Noah M. requested appellee to remain in the office until he could get the $500, and he soon obtained the money, and after deducting the amount of a certain note therefrom, paid the remainder to appellee; that he then prepared a warranty deed, which he presented to her to sign, and she then discovered that appellant Alice Teegarden was named therein as grantee instead of appellant Noah M.;

FELT, C. J. This is a suit to set aside a conveyance of real estate. The complaint is For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-41

to sell, and he was her agent for that purpose up to and including December 27, 1911, the day on which the deed was made as alleged in the complaint; that appellee was a woman of very limited knowledge of business matters; that said real estate was on said day worth $1,690; that appellant Alice Teegarden had no knowledge of the transaction, and paid no consideration for said real estate; "that plaintiff relied upon and believed the statements made to her by said defendant Noah M. Teegarden, but for which she would not have executed the deed;" "that the conduct and actions of defendant Noah M. Teegarden was and is a fraud upon plaintiff and is a fraud upon plaintiff's rights."

that the consideration therefor was paid | placed her portion of said real estate in the and delivered by said Noah M.; that on hands of Noah M. Teegarden, as her agent, the evening of said day she learned that the statements and representations of said Noali M. were false, and that she was not, in fact, in danger of losing her property; that on the next morning she called at his office and notified him that she would not be bound by such deed, and tendered back the purchase price, and demanded a return of her deed, and was informed by appellant Noah M. that he had caused the same to be recorded; that she caused a deed to be prepared reconveying said land to her, and requested appellants to execute the same, and they refused so to do; that she kept his tender of money good by paying the amount to the clerk of the court for the use of appellants; that she was induced to execute said deed by false and fraudulent statements of said appellant; that the same were false and fraudulent, and were made by said Noah M. Teegarden for the purpose of inducing appellee to dispose of her land at a sacrifice and for less than its true value; that the land so conveyed by her was reasonably worth $1,700. A separate demurrer to the complaint by each of said appellants was overruled and an answer filed in general denial. One Harriett F. Hayes filed an intervening petition alleging that she was interested in the suit by reason of a mortgage held by her on the real estate, and asked that her interest be protected.

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The objections urged to the conclusions of law by appellants are that the finding is insufficient to show actionable fraud against either of them; that the finding that appellant Noah M. Teegarden perpetrated a fraud upon appellee is an ultimate fact and must be disregarded because the primary facts negative the same; that no fraud is found against Alice Teegarden, nor does it apthat it is not found that appellee was ig pear that her husband acted as her agent; norant of the truth of the representations by which it is alleged she was deceived.

had no knowledge of the transaction and The finding that appellant Alice Teegarden paid no consideration whatever for the conveyance to her is sufficient, if a case is made out against her coappellant; for the transation is clearly shown to have been between appellee and Noah M. Teegarden. If he had, in fact, defrauded appellee, on the facts of this case, he could not cut off her right to a recovery by causing the conveyance to be made to his wife, who was not knowingly a party to the transaction, and who was named as grantee in the deed under the circumstances alleged and found by the court.

The cause was submitted to the court for trial without a jury, and on request the court made a special finding of facts. The conclusions of law were in favor of appellee and said Harriett F. Hayes. Appellants excepted to the conclusions of law and filed a motion for a new trial which was ruled. Judgment was duly rendered on the conclusions of law in favor of appellee. [1] Appellants contend that the complaint is insufficient on the ground of fraud, but have failed to set out the demurrers, or the substance thereof in their briefs. However, The court's first conclusion of law is that the same questions which are sought to be the deed in question "is void, and should be presented on the demurrers arise on the set aside, and that the title of plaintiff in exceptions to the conclusions of law. The and to said land, as against both defendants, only questions properly presented and not be quieted." On the facts found it is not eswaived relate to the correctness of the con- sential to the correctness of this conclusion clusions of law, and more particularly to of law that the finding contain every fact esthe conclusions that said deed is void and sential to the ordinary case of fraud, where should be set aside; that plaintiff's title be the parties do not sustain any confidential or quieted; and that she recover costs. The fiduciary relation to each other. The findcourt found the facts to be substantially asing shows that appellee had employed appelalleged in the complaint, and for that rea-lant Noah M. Teegarden as her attorney and son it will not be necessary to set them out in detail.

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[2, 3] The finding shows that appellant Noah M. Teegarden was an attorney and real estate agent; that he was the attorney of appellee in the settlement of her husband's estate in which she acted as administratrix, and he also represented her in the partition of the real estate of which her husband died

as her agent to sell her real estate, and that at least the latter relation continued up to the time of the conveyance in controversy. It also shows that she was inexperienced, and ignorant of the ways of business, and trusted and relied upon appellant Noah M. Teegarden for advice and guidance; that he obtained a substantial advantage in the deal amounting to about $600; that within a few hours after

been deceived and had been induced by property, and that there was no suppression said appellant to convey her property when or concealment which might have influenced the conduct of the principal." there was no immediate necessity for so doing; that she tendered back the consideration received by her, kept the tender good and demanded a reconveyance to her of the real estate which was refused by appellants.

Any breach of a duty arising from a confidential or fiduciary relation whereby the party occupying the superior position gains an advantage at the expense of any one. to whom he owes a duty, even though it be in the absence of any fraudulent intent, amounts to a constructive fraud which gives the party injured by such breach of duty a right of action. Gorham v. Gorham, 103 N. E 16-18; Keys v. McDowell, 100 N. E. 385-387; McCord v. Bright, 44 Ind. App. 275-287, 87 N. E. 654; Huffman v. Huffman, 35 Ind. App. 643-645, 73 N. E. 1096.

In this case appellant Noah M. Teegarden not only failed to obtain a finding in his favor as to the character of the transaction, but the finding is clearly to the effect that he took advantage of his superior position, did not deal fairly and openly with his principal, and gained a substantial advantage by the transaction.

Under the rules of law above announced, it is clear that the primary facts found by the court, when fairly construed, support the ultimate or inferential fact stated in the finding, that the conduct of Noah M. Teegarden in the transaction was a fraud upon appellee. The wording of the finding might be improved, but it contains facts sufficient to sustain the conclusions of law.

[5] By excepting to the conclusions of law appellants concede that the facts are fully and correctly found within the issues. Other questions suggested are not of controlling ef

fect.

We find no reversible error.
Judgment affirmed.

[4] Where the relation of attorney and client, principal and agent, or other confidential relations are shown to exist, and it is claimed that the party occupying the superior position has dealt with the one to whom he owes a duty arising out of such relation, and has gained a substantial advantage thereby, the burden is upon the one who holds such superior position of establishing that he acted in perfect good faith, gave the other party full and accurate information possessed by him, took no advantage of his knowledge or influence over the other party, (Appellate Court of Indiana, Division No. 1.

and that the contract or transaction was fair, equitable, voluntary, and well understood. Pomeroy v. Wimer, 167 Ind. 440-447, 78 N. E. 233, 79 N. E. 446; McCord v. Bright, supra, 44 Ind. App. 288, 87 N. E. 654; Rochester v. Levering, 104 Ind. 562-568, 4 N. E. 203; French v. Cunningham, 149 Ind. 632637, 49 N. E. 797; Wainwright v. Smith, 106 Ind. 239-242, 6 N. E. 333; Huffman v. Huffman, supra, 35 Ind. App. 646, 73 N. E. 1096; Fountain Coal Co. v. Phelps, 95 Ind. 271-275; Shirk v. Neible, 156 Ind. 66-71, 59 N. E. 281, 83 Am. St. Rep. 150.

In Rochester v. Levering, supra, Mitchell, C. J., in speaking of confidential relations, said (104 Ind. 568, 4 N. E. 207):

"While a transaction of the character disclosed is not necessarily voidable at the election of the principal, a court of equity, upon grounds of public policy, will nevertheless subIts purpose ject it to the severest scrutiny. will be to see that the agent, by reason of the confidence reposed in him by the principal, secured to himself no advantage from the contract. When the transaction is seasonably challenged, a presumption of its invalidity arises, and the agent then assumes the burden of making it affirmatively appear that he dealt fairly, and in the richest of faith imparted to his principal all the information concerning the The confidential property possessed by him. relation and the transaction having been shown, the onus is upon the agent to show that the bargain was fair and equitable, that he gave all the advice within his knowledge pertaining to the subject of the sale and the value of the

IBACH, P. J., and LAIRY, CALDWELL, HOTTEL, and SHEA, JJ., concur.

ENGLISH v. ENGLISH.

Nov. 6, 1914.)

(57 Ind. App. 157) (No. 8414.)

APPEAL AND ERROR (§ 635*)-RECORD-TIME
OF FILING MOTION.

The record, not showing the time of filing of a motion for new trial, so that it may have been too late, shows no error in the overruling thereof.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782, 2829; Dec. Dig. § 635.*]

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by George English against Alice English. From an adverse judgment, plaintiff appeals. Dismissed.

Ely & Corn, for appellant.

HOTTEL, J. This is an appeal from a judgment against appellant in an action for divorce brought by him. Appellant assigns as error the overruling of his motion for new trial. The transcript of the record filed in this court does not contain any record entry of the filing of such motion. It shows that the finding and judgment was rendered December 11, 1911, being the twenty-fifth judicial day of the November term, 1911, of March the Pike circuit court; that on 1, 1912, being the twenty-third judicial day of the February term of said court, the cause was continued. It then shows the following entry:

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

"And afterwards, to wit, on the 27th day of April, 1912, being the sixth judicial day of the April term, 1912, of the Pike circuit court, the following proceedings were had: Comes now the parties, and the court, having been duly advised on the motion heretofore filed for a new trial of this cause, which motion is in words and figures as follows, to wit [the motion is here set out], overrules said motion to which ruling of the court the plaintiff excepts."

Nothing appears from the record showing the filing of said motion, except the recital in the entry just quoted. Assuming, without deciding, that such a recital is sufficient to show a filing of such motion, the entry fails to show the time of its filing. So far as the record discloses, the motion may have been filed too late, and for this reason overruled.

It follows that no question is presented by the record, and the appeal is therefore dismissed.

(57 Ind. App. 151)

YOST V. DUNK. (No. 8413.)

Estate of David Yost, Deceased, to Rachel
Dunk, Dr.

To board and washing, nursing, care and at-
tention in sickness and in health of David Yost,
from April, 1902, to the date of his death,
November 26, 1910, continuously, one hundred
four (104) months, at seventeen dollars ($17.-
00) per month
.$1,768 00

Decedent was claimant's father. Briefly the evidence shows that claimant for a few years prior to her marriage kept house for her father. After her marriage she removed to a separate farm and there lived with her husband until nine years prior to the death of her father, when she, together with her husband, Orley Dunk, and their two children, removed to his farm, consisting of 40 acres of land situated in Tippecanoe county, where decedent made his home in the family up to the time of his death. Five years after the removal of claimant and family to the farm, Orley Dunk purchased and paid for 20 acres of the farm, upon which 20 acres the house was situated, the barn being located on the 20 acres retained by decedent. There is evidence tending to show that during said period of time Orley Dunk paid grain rent for the use of said

(Appellate Court of Indiana, Division No. 1. land. There does not appear to be any evi

Nov. 6, 1914.)

1. APPEAL AND ERROR (§ 971*)-REVIEWDISCRETION-CLAIMANT TESTIFYING AGAINST

ESTATE.

dence to show that decedent paid anything for the board, care, and attention given him during said period. At the time of his death Under Burns' Ann. St. 1908, § 526, provid- he was 78 years old, and during the time ing that the court, in its discretion, may require that claimant's family lived upon the farm, plaintiff, in an action against an administra- he was unable to do hard manual labor, betor for services to deceased, to testify, and declaring that any abuse of such discretion shalling in feeble health, and was at intervals unbe reviewable on appeal, the circumstances un- der the care and attention of a physician. der which the discretion was exercised, on He did light work such as splitting wood and which depends the question of abuse vel non, kindling and cultivating the garden. He did must be examined on appeal. nothing in the way of plowing, seeding, or harvesting the crop. The evidence is undisputed that claimant was kind, patient, and careful with her father, and gave him such attention as a man in his condition of health required, doing cooking, washing, and all her household work. Six disinterested witnesses testified to conversations with decedent, which are here set out.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. 971.*]

2. WITNESSES (§ 140*)-CLAIMANT TESTIFYING AGAINST ESTATE-DISCRETION.

The testimony of others being sufficient to remove the presumption that the daughter's services to her father were rendered gratuitously, and he having had property, and she having been under no higher moral obligation than his other children to care for him, so that a contract between them could be inferred, there was no abuse of the court's discretion under Burns' Ann. St. 1908, § 526, in calling her as a witness in her action against his administrator for such services.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig, § 140.*]

Appeal from Circuit Court, Tippecanoe County; R. R. De Hart, Judge.

Action by Rachel Dunk against Charles W. Yost, administrator. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph B. Ross, of La Fayette, for appellant. Morris R. Parks and George D. Parks, both of La Fayette, for appellee.

SHEA, J. Action by appellee upon the following claim filed against the estate of appellant's decedent.

Henry Heddrick testified that decedent stated to him:

"I am helpless and sleep as long as I care to. I am lots of trouble, and expect to pay for it. I have 20 acres here (he pointed to the right, we were facing to the east). That belongs to my daughter and Mr. Dunk at the end of my life to pay for my trouble."

Wilbert Landis testified that, in speaking of a cistern witness was making, decedent said:

"It is all right for me as long as I live, but of course after I die then it will go to my daughter Rachel and Orley for the keeping of me while I have been staying with them."

Philip Yost testified that decedent, in speaking of appellee and her care for him, said that:

"He [decedent] intended after he was through with what little he had he intended for her [appellee] to have it. He said she had earned

it; she had earned what he had left, and hei intended for her to have it; he had been sick a great deal, and she had given him good care." Harry W. Turnipseed testified that decedent said to him:

"I am getting old and feeble. I stay up here with Orley's. I have made my home with them. I calculate for Rachel to have the other 20 acres when I am through with it."

John H. Miller testified that in a conversation with decedent a short time before his death, decedent said:

"That be had made that his home, and that he had been some trouble to the family and some expense, and he felt like they ought to have this land for that trouble." "He said that he felt like he owed it to her, or something to that effect. I think that was the werds; that he owed them that much." Margaret A. Miller, who had known decedent many years, testified as follows: "He said that he wanted Rachel to have this farm for taking care of him, and he asked us if we thought it would be necessary to make a will in order that she get this property, and we said that we thought it would probably be necessary to make her sure of the property, and he said: 'Well, I am coming to town some of these days and have a will made up, and, will this property to her for taking care of me.'

There was a trial by jury, and judgment for appellee for the amount of her claim.

The only error assigned is the overruling of appellant's motion for a new trial. The reasons therefor are as follows: (1) That there was an abuse of judicial discretion in calling appellee on the trial of said cause before the jury to testify in her own behalf; (2) that the verdict of the jury was not sustained by sufficient evidence; (3) that the verdict of the jury was contrary to law; (4) error in admitting certain testimony of appellee.

While the opinion in Dearing v. Coulson, supra, does not disclose blood relationship between the parties, it does disclose that claimant lived in the family as housekeeper, and the other facts stated in the case are quite similar to the facts as disclosed by the evidence in the case under consideration; for instance,

one witness testified that she was in the home of testatrix eight weeks after appellee commenced work, and that testatrix, in speaking of appellee and of her excellent qualities as a housekeeper, said to the witness that she intended "to will her [appellee] 10 acres, including the orchard, house, and barn," for doing her work. The court say:

"While this is not absolute proof of an agreement, it is a strong circumstance indicating that such agreement had been made, and we think warranted the court in requiring appellee to give her version of the contract. If there was anything in the testimony of appellee, or in her manner of testifying, that raised a doubt as to her candor and truthfulness, the court would naturally exclude her evidence from consideration."

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The evidence in the case at bar was very much stronger than the evidence in the case of Dearing v. Coulson, supra. While, as stated in the case of Dearing v. Coulson, su

pra, this evidence is not absolute proof of an agreement existing between decedent and appellee which, it is correctly urged by appellant, must be shown before there can be a recovery, and must be fairly inferable from the evidence before the claimant could be called as a witness without an abuse of discretion, the repeated statements of decedent that he intended to pay claimant for her work; that he intended to will her the 20 acres of land in question, and especially the statement that he owed his daughter that amount for her care and attention to him, which implies a [1] The statute specially provides that the meeting of the minds of the parties, taken court may, at its discretion, call an interested in connection with the fact that he was old witness and require him to testify. It is and feeble, unable to do hard manual labor, rightly insisted that this is a legal discre that he needed and received special attention to be exercised with care. Section 526, tion from his daughter, both in health and Burns 1908, provides that in cases of this sickness, for which he paid nothing, is sufkind the court "may, in its discretion, require ficient to remove the presumption that the any party to a suit or other person to testify daughter's services were rendered gratuiand any abuse of such discretion shall be re-tously. viewable on appeal." Prior to the enactment Decedent had property out of which he of this statute (Acts 1883, p. 102) the action of the court in exercising the discretion of requiring a party to testify in such cases was not subject to review. The statute as it now reads, makes it the duty of the court on appeal to examine into the circumstances under which the discretion was exercised.

[2] It has been repeatedly held that every case where the discretion is so exercised must be determined on its own merits, and upon the facts as shown, and no general rule can be laid down which would be applicable to all cases. Dearing v. Coulson, 48 Ind. App. 414, 96 N. E. 9; Talbott v. Barber, 11 Ind. App. 1, 12, 38 N. E. 487, 54 Am. St. Rep. 491; Willetts v. Schuyler, 3 Ind. App. 118, 29 N. E. 273; Forgerson v. Smith, 104 Ind. 246, 3 N. E. 866.

could pay for his care. This daughter was under no higher moral obligation to care for her father under such circumstances than his other children, who are resisting this claim. It is not reasonable to suppose that decedent intended that his daughter should go unrewarded, nor that the claimant had any other expectation than that she would be paid, however strong might be her affection for her father. Under such evidence, a contract between the parties could well be inferred, and the court did not abuse his discretion in calling claimant as a witness. Williams v. Resener, Adm'r, 25 Ind. App. 132, 56 N. E. 857; Stewart v. Small, 11 Ind. App. 100, 38 N. E. 826; Hill v. Hill, 121 Ind. 255, 261, 23 N. E. 87.

In the case of Myers v. Manlove, 53 Ind.

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