49 Ind. App. 589 | Ind. Ct. App. | 1912
This was a suit to quiet title to, and for the partition of certain real estate in Bloomington, Indiana.
It is conceded that the case was tried on the third and fourth paragraphs of the complaint, the second paragraph of the cross-complaint, and general denials to each of said paragraphs. The issues were tried by the court, and a decree was entered in favor of appellee on her cross-complaint.
In this court appellants have assigned as error (1) the overruling of their demurrer to the second paragraph of cross-complaint, and (2) the overruling of their motion for a new trial.
The second paragraph of cross-complaint was to quiet title in appellee to said real estate, and to reform a certain written contract with reference thereto-. The only defect claimed in this paragraph is that it alleges that appellee and her husband “executed and acknowledged a warranty deed to said premises to said Mary Snodgrass.”
The facts material to the questions presented, and common to both of these pleadings, in substance, are that on August 10, 1893, appellee Jennie D. Bollenbacher and her husband executed a warranty deed to Mary Snodgrass for certain real estate in Bloomington, Indiana, and on the same day and concurrently therewith the grantor and grantee in said deed and the latter’s husband entered into a written contract, the material part of which is as follows:
“This day Mary Snodgrass has executed to Jennie D. Bollenbacher, her daughter, a warranty deed for her house and lot in Bloomington, Indiana, and it is understood that as a part of the consideration therefor 'William P. Bollenbacher and Jennie D. Bollenbacher, husband and wife, agree to assist in the support of said Mary Snodgrass, as she may need it, during her natural life. Said Jennie D. Bollenbacher and William P. Bollenbacher have this day also executed to Mary Snodgrass a warranty deed for the property described*591 in the foregoing deed, and delivered it to William IT. Paynter, of Salem, Indiana, to be delivered to Mary Snodgrass, above named, at the time of the death of said Jennie D. Bollenbacher, that said William II. Paynter is to hold said deed in trust for said Mary Snodgrass, and deliver the deed as above stated unless the three parties above named shall all agree that said deed shall be destroyed before that time. This instrument is to be attached to the deed above named, held in trust, and to be delivered as stated by said William II. Paynter, his executor and administrator.”
The deed and contract in question were deposited with said Paynter, and all the parties never agreed to destroy the deed. On August 18, 1905, after the death of Mary Snodgrass, said Paynter delivered the deed and contract to appellee.
Appellants insist that if the deed had been fully executed, the contract could not affect it, and therefore no cause of action is stated. Ordinarily, to speak of a deed or other instrument of like character as “executed”, implies not only that it was signed and acknowledged, but delivered. However, as the word is here used, it certainly appears that the pleader did not intend that it should be taken in its technical sense, but as referring only to the signing and acknowledging of the deed, and not to its delivery. Giving the word in question the meaning evidently intended, the objection is not well taken.
Two reasons are assigned for the motion for a new tidal: (1) The decision of the court is not sustained by sufficient evidence, and (2) the court erred in permitting William PI Paynter, over appellants’ objection, to state what occurred between him and Mary Snodgrass, for the reason that the relation of attorney and client existed.
A fair consideration of the evidence, disclosed by the record, warrants the conclusion that the witness, William H. Paynter, as a scrivener, cautioned by his legal learning, undertook to prepare papers which would vest the daughter with the title to the real estate, and obligate her to furnish the mother a living, and only in case the mother outlived the daughter should the title to the property be revested in the mother. Such was the agreement and intention of the parties, but the procedure through which this agreement was to be made effective was left to the witness. Over appellants’ objection, the witness was allowed to state what was said and done at the time the deeds and contract were prepared.
By §520 Burns 1908, §497 R. S. 1881, attorneys are not competent witnesses “as to confidential communications made to them in the course of their professional business, and as to advice given in such cases.” But it has been held
The facts in this case bring it within the rule as settled by the eases cited, and the objection to Paynter’s testimony was properly overruled.
In the case of Adams v. Wheeler (1890), 122 Ind. 251, it is said: “It is a well-established principle of equity jurisprudence, that where through the mutual mistake of the parties, the form of an instrument is such that it does not express the agreement as the parties intended it should, the aid of a court of chancery may be invoked to reform the contract or deed. Keister v. Myers [1888], 115 Ind. 312;
Having determined that the testimony of witness Paynter was admissible, there is an abundance of evidence to sustain the decision of the court.
Judgment affirmed.