26 Ind. App. 652 | Ind. Ct. App. | 1901
Tbe court below sustained the appellee’s demurrer for want of sufficient facts to each of the first and second paragraphs of the complaint of the appellants, Mary L. Dodds and William B. Dodds, filed on the 12th of November, 1897. The trial of an issue formed by a denial of the third paragraph of the complaint resulted in favor of the appellee. It is contended that the court erred in sustaining the demurrer to the second paragraph of the complaint. In that paragraph it was stated that on the 1st of March, 1895, Lucy C. Humphries, then the owner in fee simple of certain described land, thirty acres, in Grant county, Indiana, executed her last will and testament, whereby she devised all said real estate to the appellants; that the testatrix
While the rule of the common law, that a conveyance or devise to husband and wife without words limiting the estate taken creates an estate by entireties is recognized as an exception in our statutes and enforced in this State, yet, as at common law, it is also held that a husband and wife may take real estate as joint tenants or as tenants in common, if the instrument creating the title use apt woi'ds for the purpose. Carver v. Smith, 90 Ind. 222, 46 Am. Rep. 210; Edwards v. Beall, 75 Ind. 401; Hadlock v. Gray, 104 Ind. 596; Brown v. Brown, 133 Ind. 476; Thornburg v. Wiggins, 135 Ind. 178, 22 L. R. A. 42, 41 Am. St. 422; Wilkins v. Young, 144 Ind. 1, 55 Am. St. 162; Simons v. Bollinger, 154 Ind. 83.
In the devise, the terms of which axe set forth in the complaint, the purpose is manifest not to create an estate by entireties) but to confer the property upon the devisees share and share alike; that is, as tenants in common. There
Every conveyance of lands not recorded in the recorder’s office of .the county where the lands are situated in forty-five days from the execution thereof is fraudulent and void as against any subsequent purchaser, lessee, or mortgagee in good faith and for a valuable consideration. §3350 Burns 1894, §2931 Horner 1897.
Ho conveyance of any real estate in fee simple is valid and effectual against any .person other than the grantor, his heirs and devisees, and person having notice thereof, unless it is made by a deed recorded within the time and in the manner provided by statute. §3345 Burns 1894, §2926 Horner 1897.
These provisions of the statute relating to the recording of deeds of conveyance, etc., of real estate do not render the unrecorded instrument absolutely void; “persons having notice thereof” are among those as to whom, in order to render the conveyance, etc., valid and effectual, the recording thereof is not required by the statute in one of the sections, while the other section renders the failure to record fraudulent and void “as against any subsequent purchaser, lessee, or mortgagee in good faith, and for a valuable consideration.”
These statutory provisions, in effect, provide that such an unrecorded deed shall be valid as against all persons having notice of it, and shall be void as to any subsequent purchaser, lessee, or mortgagee in good faith and for a valuable consideration.
Purchasers at judicial sales have the same rights as against unrecorded deeds as other purchasers. Doe v. Hall, 2 Ind. 556, 54 Am. Dec. 460; Dawkins v. Kions, 53 Ind. 164; Pierce v. Spear, 94 Ind. 127; Runyan v. McClellan, supra.
A purchaser of real estate on execution such as the appellee, who buys in good faith and without notice, is protected as a bona fide purchaser for a valuable consideration against prior equities and unrecorded deeds. Pierce v. Spear, supra; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. 381; Boos v. Morgan, 130 Ind. 305, 30 Am. St. 237; Pugh v. Highley, 152 Ind. 252, 71 Am. St. 327.
A complaint to quiet title will be insufficient on demurrer if the facts stated therein fail to show title in the plaintiff. Chapman v. Jones, 149 Ind. 434, and cases cited. The plaintiff must recover on the strength of his own title. §§1069, 1083 Burns 1894, §§1057, 1071 Hornea 1897; Johnson v. Pontious, 118 Ind. 270.
Here the plaintiff, instead of assei*ting title generally, sets forth the facts upon which her claim of title is pi*edicated. She undertakes by the allegation of facts to show her own title, and seeks to quiet it as against the interest of the defendant under his sheriff’s certificate of sale, which is a statutory lien only, until, after the expiration of the year for redemption, he shall have received a deed from the sheriff investing him with title to the land. Jewett v. Tomlinson, 137 Ind. 326; Hill v. Swihart, 148 Ind. 319; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. 381. Having thus undertaken to show the grounds upon which she bases her asserted title and claims such relief against the defendant, the complaint can not be regarded as sufficient’unless the facts stated in themselves establish her title. Kennedy v. Hudkins, 140 Ind. 570; McPheeters v. Wright, 110 Ind. 519.
In Alexander v. Herbert, 60 Ind. 184, the plaintiff sued for partition as widow of a deceased grantee whose deed was not recorded, but was surrendered by him to his grantor, who conveyed the land to another through whom the defendant derived title. The complaint was held insufficient for failure to show that the defendant was a purchaser with notice.
It is not stated in the'complaint before us that the deed from the husband to the wife has ever been recorded. It is shown by the paragraph under examination that the appellant Mary was in possession at the commencement of this suit, but it does not appear from the pleading when she took possession, or how long she had been in,possession. While it is shown that the appellee is a purchaser for a valuable consideration, it is not shown that he is not a purchaser in good faith, or that he at the time of his purchase had any knowledge or notice actual or constructive of the conveyance from the judgment debtor to his wife. We think there was no error in sustaining the demurrer.
Under the assignment that the court erred In overruling the motion of the appellants for a new trial, it is contended that the evidence was insufficient to sustain the decision of the court; but we can not disturb the result reached by the trial court without improperly invading its province.
Judgment affirmed.