60 Ind. 184 | Ind. | 1877
Suit for partition, commenced on the 19th day of February, 1875, by Adaline Alexander, widow of George IT. Alexander, deceased, against Charles Herbert, the possessor of the lands of which partition is sought, and which are described in the following complaint.
A demurrer for want of facts was sustained to the complaint, and judgment rendered for the defendant.
Appeal to this court.
The complaint follows:
“Adaline Alexander, plaintiff, complains of Charles Herbert, defendant, and says, that heretofore, to wit, on the — day of-, 1858, one George IT. Alexander purchased, owned and held by deed, in fee-simple, duly executed to him, the following real estate in the county of Clay and State of Indiana, to wit: A parcel, tract or lot of ground in the town of Brazil, in the county of Clay, and State of Indiana, to wit: Commencing at the corner of Washington and Natioual Road streets, running thence south-west, with Natioual Road street, sixty (60) feet; thence south-east to Middle street; thence northeast, with Middle street, to Washington street, sixty (60) feet; thence north-west, with Washington street, to place of beginning, — from one Ezra Olds; that afterward, and before the said George IT. Alexander had the said deed
The demurrer was sustained, and judgment rendered for the defendant, on the ground that he is not shown to be a purchaser with notice.
The case presents this question: Under the present
The plaintiff based her right to recover upon the following section of the statute of descents, 1 R. S. 1876, p. 413:
“ Sec. 27. A surviving wife is entitled, except as in section seventeen excepted, to one-third of all the real estate of which her husband may have been seized in fee-simple, at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lauds in which her husband had an equitable interest at the time of his death : Provided, That if the husband shall have left a will, the wife may elect to take under the will instead of this or the foregoing provisions of this act.”
The defendant relies for his defence to the action upon sections 11 and 16 of the act concerning the .alienation of real property, etc., 1 R. S. 1876, p. 361. They follow:
“ Sec. 11. Ro conveyance of any real estate in fee-simple, or for life, or of any future estate, and no lease for more than three years from the making thereof, shall be valid and effectual against any person other than the grantor, his heirs and devisees, and persons having notice thereof, unless it is made by a deed recorded within the time and in the manner provided in this act.” 1 R. S. 1876, p. 364.
“ Sec. 16. Every conveyance or mortgage of lands, or of any interest therein, and every lease for more than three years, shall he recorded in the recorder’s office of the county where such lands shall be situated; and every such conveyance or lease not so recorded within ninet3rdays from the execution thereof, shall be fraudulent and void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration.” 1 G-. &H.,p. 260.
At common law, title to land passed by the delivery of a duly executed deed of conveyance. Under the statutes-of Indiana, the title passes by the delivery of such deed, subject to be divested in consequence of the negligence of the grantee, in failing to perform, in due time, a certain act, required of him after the delivery to him of the-deed, viz.: filing the same in the proper recorder’s ofiice for record.
It will be here observed, that the wife does not take title to the real estate mentioned in section 27 by a. conveyance to her, but by operation of law, through a conveyance to her husband. She must therefore take it subject to all conditions and infirmities attaching to it in the hands of her husband. Her title can not, in reason, be more perfect than his, from which hers is derived. The conveyance, as we have said, is to the husband; the consideration is paid by him; the delivery of the deed is to him; the custody of it belongs to him; and when he fails to perform the act of filing it in the recorder’^ ofiice, whereby his title is lost, as against a bona fide purchaser from his grantor, that of his wife must, under the-statutes, go with his. There is no equity in giving her preference over such a purchaser. The object of the statute, in preventing secret liens and claims of title, would be thwarted by any other construction. Sound policy requires the adoption of the construction we give the-statutes.
The judgment is affirmed, with costs.