Bonham v. Doyle , 39 Ind. App. 438 ( 1906 )

Roby, C. J.

The complaint in this case was in two paragraphs, the first for partition and the second to enforce an alleged trust. Bonham v. Doyle, ante, 434. The appellee Doyle answered in seven paragraphs. The answers are to the complaint and are not in terms directed to either paragraph separately. The first paragraph of the answer was a general denial. The sixth set up the fifteen-year statute of limitations and the seventh the twenty-year statute of limitations. The second paragraph, while it is in terms addressed to the plaintiff’s complaint, is by its facts shown to have been intended as an answer to the second paragraph of the complaint. This is also true of the third, fourth and fifth paragraphs of said answer.

1. The second paragraph of complaint in terms sets up an express trust concerning lands, which is not averred to have been in writing. The facts stated in the paragraph were therefore insufficient to show an express trust. §3391 Burns 1901, §2969 R. S. 1881; Stonehill v. Swartz (1891), 129 Ind. 310. If the paragraph is sufficient, it is on the theory of a constructive or implied trust. §6632 Burns 1901, §4907 R. S. 1881.

2. A summary of the paragraph is contained in the opinion in Bonham v. Doyle, supra. It is averred that, in order to procure the conveyance of certain real estate to him, Doyle falsely and fraudulently made certain representations. It is not averred that any of said representations were untrue. The paragraph is therefore not sufficient as containing a charge of actual fraud. “The use of epithets, however bountifully multiplied, will not supply the place of facts.” Clodfelter v. Hulett (1880), 72 Ind. 137, 143. This defect renders it unnecessary to consider the materiality of the facts averred.

3. It appears from the complaint that the plaintiff, Winnie E. Bonham, and the defendants, Amanda Maddox and Clara Bauer, were daughters, by a prior marriage, of Mary J. Doyle, wife of Luther P. Doyle, who was also the mother of two children by the last marriage. It is not averred as a fact that any confidential relations existed between Doyle and his said stepdaughters. No circumstances pointing out the existence of such relation are set out in the complaint. The stepdaughters are not shown to have been infants or of tender age. They are presumptively adults. It does not appear that they were members of the Doyle family, or in anywise dependent upon their stepfather. Wherever a fiduciary relation is shown to exist, either by actual averment or by the statement of relations, during the continuance of which confidence is necessarily reposed by one or a corresponding influence possessed by the other, the person availing himself of his position to obtain an advantage becomes in equity a trustee. Huffman v. Huffman (1905), 35 Ind. App. 643.

4. There are not sufficient facts averred in the second paragraph of the complaint to show the existence of such relation, or that the conveyance was obtained by reason of it. A bad answer is good enough for a bad complaint.

5. This consideration disposes of the first six assignments of error. The seventh and eighth assignments are based upon alleged error in refusing to sustain an application for a change of judge. The action of the court complained of should have been stated as a reason for a new trial, and error assigned upon the overruling thereof. Citizens St. R. Co. v. Shepherd (1902), 29 Ind. App. 412; Sidener v. Davis (1882), 87 Ind. 342; Bain v. Ward (1881), 77 Ind. 153.

The record in this cause and in Bonham v. Doyle, supra, appear to be identical, and were each filed on April 27, 1905, the latter in an appeal to the Supreme Court, from whence it was transferred to this court, and the former in an appeal to this court. The effect of the multiplicity of records and of pleadings has not been minimized by the argument of counsel on either side. The appeals have been considered without formal consolidation, and the judgment appealed from is therefore again affirmed.