162 Ind. 154 | Ind. | 1904
This action was brought by appellant against appellees to quiet title to certain real estate., There was a trial by jury, and on the conclusion of the evidence the court directed a verdict in favor of appellees. Over a motion for a new trial, judgment was rendered on the verdict.
It is objected by counsel for appellees that the assignment of errors is defective, in that the name of the court to which the appeal was taken is not shown. Appellant, presumably by oral direction, caused the appeal to be docketed in the Appellate Court, and an order of submission was afterward entered. That court alone has original appellate jurisdiction over cases of the class to which this belongs. If the case had been filed in this court, it would have been our duty to transfer it. §1362 Burns 1901. The procedure of appellant in the particular stated was irregular, but the Appellate Court acquired jurisdiction by the steps taken, and as the irregularity is not serious we regard it as our duty to consider the appeal on its merits.
It remains to determine whether there was sufficient evidence to entitle appellant to go to the jury. The question was as to the delivery and acceptance of a deed. The real estate in question belonged to- one Erastus H. Emmons, and was part of an eighty-acre tract of land. In the spring of 1900 Emmons signed and acknowledged eleven deeds, describing in the aggregate said tract of land. The deeds were .in favor of his eleven children, respectively, except that as to the portion intended for the benefit of
In August, 1900, Emmons sent for a friend and neighbor, one Blue, and handed him said deeds, and also a writing which contained directions concerning the disposition of said instruments. Emmons was at the time an old man, in failing health. He had resided with appellant and her husband upon said eighty acres of land for many years. We have only secondary, and somewhat fragmentary, evidence as to the writing which accompanied the deeds. It is in evidence that it contained a direction to Blue to hold the deeds until Emmons’ death, and at “his death to deliver them to each one of the heirs.” Said writing contained some further provisions to the effect that the crops were to be sold, and, if necessary, timber was to be sold (whether the timber was upon the tract embraced in the deed in favor of appellant does not appear) to meet the expense of Emmons’ support, and to pay the cost of his burial. A number of oral statements were made to Blue by Emmons at the time of the delivery of said papers. Thus, when the deed to appellant was turned over to Blue, Emmons said, “This is Henry’s,” and upon Blue stating that it was made to Ellen (appellant), Emmons answered, “Yes, I made it to her.” He then explained that he had done so because Henry was in debt, and he added that he thought it best to deed the land to her so that she and Henry could have a home. In the course of said conversation Emmons further said that he did not owe any man a dollar; that he “did owe Henry some, but made that all right with him in deeding the land to pay him.” He further said, with reference to his having lived with Henry and his wife, that “he had been sick, and a good deal of bother to them,” and that “he thought it was right to give Henry that much.” The
A few days after the above-mentioned conversation, one Smith, who was acting for appellant and her husband, stated to the elder Emmons that Henry and his wife requested that he “let the deed stand as it was, and they would give no further trouble at all from any book account or anything of that kind.” Emmons answered that he would allow the deed to remain if there would be no further account, and if said Smith would be a witness to that fact; an assurance which the latter thereupon gave. A little later Emmons called on Blue, and stated that he had “changed things,” or “changed his mind,” and he demanded and received said deeds and the paper which had been delivered with them. On August 30, 1900, Emmons, Sr., and appellee Harding concluded an oral negotiation for the sale to the latter of said eighty acres. He paid $1 down, and on the next day he received a deed and made an additional payment. Said appellee admitted upon the stand that he had heard of the making of said former deeds, and that said Blue held them, and said witness further admitted that he destroyed said deeds, at the request of said Emmons, at the time he concluded his negotiation for ‘the purchase of said land. Emmons died in April, 1901, before this suit was commenced.
So far as described in the evidence, the deed in favor of appellant was unconditional. Appellant, at least, had
It is insisted by counsel for appellees that as the grantor took the deed from the hands of the person to whom it was entrusted, and executed a deed of the land subsequently, the court should not treat the first deed as a conveyance of the land. A delivery of a deed to a third person to be by the latter delivered upon the grantor’s death, would appear at first thought to be open to the objection that there was lacking that meeting of minds which is essential to the validity of contracts, nevertheless it is hornbook law that a subsequent acceptance of the instrument or a ratification of the transaction may, by the operation of the fiction of relation, validate the deed.
It is to be observed that the instrument on its face purports to run in favor of the grantee, thus bringing him, in a sense, into privity with the grantor. Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534. It is required that the delivery to the third person be of such a character that all dominion over the deed upon the part of the grantor should terminate. The transaction is to be distinguished from an escrow. The instrument has been lodged with the third person to await the lapse óf time, and not the performance of any condition, and there is nothing to prevent it from becoming the grantor’s deed presently. Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154. In fact, the authorities proceed on the theory that a deed so delivered is for some purposes a present conveyance. Osborne v. Eslinger, 155 Ind. 351, 80 Am. St. 240, and cases
As to the first ground, reference may be made to the note to the case of Armory v. Delamirie, 1 Smith, Lead. Cas. (11 Eng. ed.), 356, 361. In that note the annotators say: “A subsequent ratification of an act done in the name of the party who ratifies is tantamount to a prior command, nay, that it has relation back to the time of the act done, and is in point of law, and may be described in pleading as, a command. So that, where a person, if present at the time, could lawfully command any act to be done, any other person, though either wholly without authority, or exceeding the limits of his authority, would be justified in doing that act, provided he did it in the name, or as one acting by the authority, of the person entitled (whether to his advantage or not), and obtained his subsequent ratification.” This, if we may omit a few exceptions not necessary to note here, is a correct statement of the law. See 2 Bouvier’s Institutes, §1316 et seq.
As to the second ground above stated — that of a presumed acceptance — it was once held that a disclaimer by matter of record was necessary to avoid the transaction, but it was afterwards adjudged otherwise. Townson v. Tickell, 3 Barn. & Ald. 31. As stated by Justice Ventris in Thomson v. Leach, 2 Vent. 198, a man “can not have .•an estate put into him in spite of his teeth.” But the presumption that a person will accept a pure, unqualified gift is so strong that the courts have quite generally manifested a disposition to act upon such presumption in the interim as a working rule for the operation of conveyances. See Mitchell v. Ryan, 3 Ohio St. 377; 4 Kent’s Comm., *455, and note.
The reason of the doctrine is found in the desire of the courts to uphold the agreements of parties; — ut res magis valeat quam pereat, — that the thing may prevail rather than be destroyed.- “Without necessity, ul res magis valeat, the law will not feign any nullity.” Butler and Baker’s Case, 3 Rep. *25. The leading limitation of the doctrine is found in the. maxim in fictione juris semper esquitas existit — a legal fiction is always consistent with equity.
We think, however, that appellee Harding was not a stranger in the ordinary sense. If we assume that there had been a constructive delivery to appellant by the elder Emmons — a matter concerning which said appellee was put on inquiry — it may be said that he is in privity with his grantor, and, as applied to such a case, we think that, as a subsequent grantee with notice, said appellee stands on no better footing than that occupied by his grantor.
The theory that a constructive acceptance is possible is now thoroughly established, and, as all the cases travel upon the postulate that to make a sufficient delivery the deed must pass out of the dominion of the grantor, it ought scarcely to he held that one claiming under him, but with notice of all the facts, could take title, if the first grantee afterwards accepted the benefit of the prior delivery. In Stone v. Duvall, 77 Ill. 475, where a bill had been filed by a grantor to set aside a deed of which there had been only a constructive delivery, the Illinois supreme court said: “To cancel the deed would be to permit Duvall to change his mind, and to defeat his act deliberately done after consultation and advice taken, and done in accordance with his previously expressed purpose to convey to Mrs. Stone.” If the grantor could not defeat the deed by action, it would seem that he ought not to be able to do so by a deed executed to a party who received the same with knowledge of the facts.
Although the authorities generally announce that the doctrine of relation is not to be applied to strangers, yet those who are in privity with the grantor are treated as hound, according to the general statements found in the cases. Heath v. Ross, supra; Hawley v. Cramer, supra; Jackson v. Douglas, supra. See Fite v. Doe, supra; German Mut. Ins. Co. v. Grim, supra. In Buller and Baker’s
We are not authorized to regard appellant as a grantee without equity. “Family agreements and settlements are treated with especial favor by the courts of equity, and equities are administered in' regard to them which are not applied to agreements generally, and this on the ground that the honor and peace of families make it just and proper to do so.” 12 Am. & Eng. Ency. Law (2d ed.), 875. In Souverbye v. Arden, 1 Johns. Ch. 240, 256, it was said by Chancellor Kent: ■ “A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted nor intended to part with the possession of the deed.” Assuming a valid delivery of the instrument in which appellant was named as grantee, the case seems one in which the fiction of relation should be resorted to, in order to work out equity. We can not uphold both instruments, and it seems clear, under the circumstances, that' if the first instrument was ever the deed of the elder Emmons, the subsequent acceptance of it should have relation back.
The important question in the case is as to the intent of said Emmons at the time he delivered said instrument to Blue. He could not have it take effect subsequently as a testamentary disposition of a portion of his property, and, if he entrusted said instrument to Blue as his (said Emmons’) agent, it is obvious that it did not pass beyond his control, and was therefore subject to be reclaimed. Huder our statute it is possible to create a freehold estate
It is said that a deed may be delivered by words without acts, or by acts without words. .One or the other is necessary that there may be some indicia of the intent of the maker to deliver the instrument as his deed. The act or the word may unequivocally evince the purpose of the maker, particularly when the instrument is lodged with the grantee; and the question of delivery may thus become one of law, but ordinarily the question of delivery is largely one of fact. Dearmond v. Dearmond, 10 Ind. 191; Somers v. Pumphrey, 24 Ind. 231; Nye v. Lowry, 82 Ind. 316; Lindsay v. Lindsay, 11 Vt. 621; Jones v. Swayze, 42 N. J. L. 279; Babbitt v. Bennett, 68 Minn. 260, 71 N. W. 22; Hibberd v. Smith, 67 Cal. 547, 4 Pac. 473; Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. 186; Murray v. Earl of Stair, 2 Barn. & Cr. 82. Some of the above cases are much in point. Thus, in Murray v. Earl of Stair, supra, it was said: “Upon further consideration, we are all of opinion that there ought to be a new trial in this case, and that it should be presented as a question of fact for the jury upon the whole evidence, whether the bond was delivered as a deed to take effect from the moment of such delivery, or whether it was delivered to Saunders upon the express condition that it was not to operate as a deed until the death of the then Lord Stair, and then only upon the delivering up of the two promissory notes.”
It is argued by counsel for appellees that the evidence fails to disclose a purpose to dispose of an estate which
Judgment reversed, and a new trial ordered.