138 Ind. 385 | Ind. | 1894
The appellants sued the appellee for partition of real estate situate in Sullivan county. Upon
The substance of the special finding is that on January 24, 1865, Bazzle Carrico was the owner in feer simple of the land in controversy (describing it), and that his wife Frances was living at the time; that at that time they had a son living named Francis Carrico who had three children living, named respectively, Mary J., Truston, and Frankie, aged six, four and one year, then living with their father; that on that day said Bazzle and wife made a deed purporting to convey said real estate “to Francis Carrico’s heirs,” which deed was duly acknowledged and filed in the proper recorder’s office on the same day, by whom it was so filed being undisclosed, and it was recorded August 9th, 1867; that when said deed was so left in the recorder’s office said Francis Carrico and his family, consisting of his three infant children and wife, their mother, moved upon and took possession of said lands and farmed the same, cleared parts thereof and continued to so occupy the same until April 5, 1869; that Truston Carrico died in 1875 intestate, leaving surviving him as his only heirs at law his father and mother, said Francis Carrico and wife, and his sisters, Mary J., and Frankie; that on September 5, 1875, said Mary J. Carrico intermarried with Plenry Booker, and is the Mary J. Booker who is one of the plaintiffs (appellants); that said Frankie, on August 16, 1884, intermarried with the plaintiff, Robert Whit-lock, and they had born to them as the only issue of said marriage one child, viz: Lizzie Whitlock, one of the plaintiffs, appellants herein; that said Frankie died in
The conclusion of law stated upon these facts is: ‘ ‘That the defendant (the appellee) is the owner of the lands set out and described in the complaint, and entitled to the possession thereof, and that the plaintiffs (the appellants) take nothing by their complaint herein.”
The question that lies at the threshhold of the case is, whether the deed from Bazzle Carrico to “Francis Carri
Appellee’s counsel seems to take it for granted that such a deed is valid, and effectual to convey title to the children of Francis Carrico, and seeks to support the conclusion of the trial court on the sole ground of adverse possession under claim of ownership in appellee and his grantors for more than twenty years prior to the commencement of the action. Ordinarily, twenty years after the right of action accrues for the possession of real estate, under the twenty years’ statute, is a complete bar to such action, without such possession having been adverse. R. S. 1881, section 293; 1 Burns’ R. S. 1894, section 294; Vanduyn v. Hepner, 45 Ind. 589.
But it has been held by this court that such defense does not apply to an action for partition. Peden v. Cavins, 134 Ind. 494; McCray v. Humes, 116 Ind. 103.
It has also been held by this court that twenty years’ adverse possession not only bars the action for possession, but also confers as complete a title as a written conveyance, even against a tenant in common, where the tenant in possession denies the right of his cotenant and asserts a hostile title. Bowen v. Preston, 48 Ind. 367, and cases there cited.
The theory of the appellants is, we presume, that the deed to Francis Carrico’s heirs vested the title in his three children, and one of them, Truston, having died in 1875, in infancy, unmarried and without lawful issue, one-half of his third of the land descended to his
It is settled law that by virtue of a warranty, deed to the grantee, his heirs and assigns may, by estoppel and direct operation of law, become vested with a title acquired by the grantor after the execution of the deed. 19 Am. and Eng. Encyc. of Law, 1020, 1021, 1022, and numerous authorities there cited; Hannah, Admr., v. Collins, 94 Ind. 201; Locke v. White, 89 Ind. 492; Avery v. Akins, 74 Ind. 283.
Whether this is the way appellants conclude that the appellee became clothed with the parts, which is one-sixth of said lands, their counsel have not seen fit to inform us. But we see no other way by which appellee can have any interest in said lands, if appellants’ assumption is correct, that the deed to Francis Carrico’s heirs clothed the appellants with title, unless adverse possession for twenty years clothed appellee with the whole title. But it seems to us that appellants have been .altogether too generous in conceding to appellee the ownership of the one-sixth or any other portion of these lands if the deed to Francis Carrico’s heirs vested the title thereto in his children.
Assuming that it did so vest the title, and conceding that the warranty deed of Francis Carrico to Josiah Carrico, attempting to convey to the latter the whole of the lands, in 1869, enured to the benefit of said Josiah and his grantees, on the death of Truston, one of the childdren of Francis, by which one-half of Truston’s third descended to his father, said Francis, yet such principle could operate no further than the deeds in the chain of
A quitclaim deed can not have that effect. Avery v. Akins, supra; Graham v. Graham, 55 Ind. 23; Shumaker v. Johnson, 35 Ind. 33.
If the special finding is correct and full, and appellants, by excepting to the conclusion of law, admit that, it is so, and if their assumption that the deed from Francis Carrico’s heirs vested in them title to the land, then they had no cause for partition against the appellee, for he owned no part nor interest in the land unless he owned it all by twenty years’ possession by himself and grantors. If he owned it all by twenty years’ possession, then the appellants had no cause for partition against him. If he did not own it all by twenty years’ occupancy, and appellants’ assumption be correct as to the effect of the deed of Bazzle Carrico, then appellants had no cause for partition against appellee, but rather a cause of action for possession.
As before observed, that action is easier defeated by twenty years’ continuous possession than it is to defeat a suit for partition by such possession. That may account for the seeming too great generosity of appellants in planting their suit on the theory that appellee owned one-sixth interest in the land and asking partition instead of bringing an action for possession.
The conclusion we shall reach as to the effect of the deed from Bazzle Carrico, makes it wholly unnecessary to decide whether the facts found make a case of twenty
It was held by this court, in Winslow v. Winslow, 52 Ind. 8, that a deed to the heirs of a living person to take effect immediately, exactly such a deed as the one here involved, was void.
In Lyles v. Lescher, 108 Ind. 382, Elliott, J., speaking for the court, seripusly doubted the correctness of the decision in Winslow v. Winslow, supra, remarking that some of the authorities oh which it was founded had since been overthrown, and others were not in point, but left the question open for future consideration without deciding it.
Afterwards, in Outland v. Bowen, 115 Ind. 150, Mitchell, J., in speaking for the court, directly affirmed the doctrine of Winslow v. Winslow, supra.
The court then goes on to hold that where there are any other words in the deed from which it may be inferred that the grantors did not use the word heir or heirs in its strict technical legal sense, or that indicate that children were thereby intended, then the rule does not apply, and that effect will be given to the • apparent intent. But here there are no other words in the deed to indicate any other intention on the part of the grantor than that he used the word “heirs” in its strict legal sense. He may have meant children, and he may have, meant heirs. This makes it wholly uncertain as to who the grantees were. If he had used words in addition indicating that he meant children by the word “heirs,” that would have been certain enough, but he might have meant heirs in the legal signification of the word. If he did, then in addition to the fact that a man can not have heirs while he lives, it would always remain a matter of great uncertainty who the. man’s heirs would be until he dies. So that if he meant heirs in the legal signification of the word, it was vpid for uncertainty, and because he could have no heirs while he lived. But, as we do not know whether he meant heirs, in the legal signification of the word, or children, the deed is equally void for uncertainty in the grantee.
It follows from what we have said, that the legal title to the lands in controversy was conveyed to the appel
The judgment is affirmed.