27 Ind. App. 654 | Ind. Ct. App. | 1901
— This was an action by appellants to quiet their titles to certain lands in Posey county, Indiana. Appellee Olive Jane Rachels answered by general denial. She also- filed a cross-complaint asking that the title to' the land in question be quieted in her. The infant appellees, children of Olive Jane Rachels, filed a like answer and cross-complaint.. Appellants replied the general denial. The cause was submitted to the court for trial, which resulted in a finding and judgment in favor of appellees, defendants below. The appellants filed a motion for a new trial, which was overruled, and this action of the trial court is the only error here assigned.
Appellants contend that the judgment of the trial court is not sustained by sufficient evidence, and is contrary to law. The evidence is not conflicting, and discloses the following facts, upon which appellants base their cause of action: Levi Fifer, the grantor named in the deeds in controversy, was, in 1894, a fanner past sixty years of age, owning about 400 acres of land and personal prop
In Vaughan v. Godman, 94 Ind. 191, it is said: “In all disputes as to whether or not a deed has been delivered, the most important inquiry is to ascertain the intent of the grantor in the act, or several acts, which, it may be claimed, constitute a delivery. Did he intend to part with all control over the deed ? Did he intend to divest himself of the title and lodge it in the grantee ?”
Much evidence was introduced, consisting principally of the grantor’s declarations on the subject, tO' prove the intention of the grantor to give the land to the parties named as grantees in the deed. But such evidence does not establish the delivery of the deed. Evidence of one’s intention to give certain lands to certain persons, and evidence of the intent to deliver a deed of conveyance, are widely different. The grantor undoubtedly intended that the grantees named in the deed should have the land, but evidence to establish that intention is of little value as going to establish the intention to deliver a deed of conveyance. As was said by the Supreme Court of Illinois in Walls v. Ritter, 180 Ill. 616, 54 N. E. 565: “The declarations made by the deceased, as proved, show an intention on his part to give the land to appellant, but they have no bearing on the vital question, did he give it to him by the execution and
The conveyance of title to land has always been surrounded by formalities and hedged in by strictly enforced rules of law, all of which are rendered necessary to prevent fraud and to establish a chain of title to property which from its very nature is indestructible. We think the recent case of Osborne v. Eslinger, 155 Ind. 351, 80 Am. St. 240, decisive of the question of delivery arising upon the facts in this case. In that case, the court, by Dowling J., says: “Where the claim of title rests upon the delivery of the deed to a third person, the deed must have been properly signed by the grantor, and delivered by him, or by his direction, unconditionally, to- a third person for the use of the grantee, to be delivered by such person to the grantee, either presently, or at some future day, or upon some inevitable contingency, the grantor parting, and intending to part, with all dominion and control over it, and absolutely surrendering his possession and authority over the instrument, so that it would be the duty of the custodian
Giving effect to- the law so announced, what is the result when applied to the facts in the case at bar ? Fifer placed a sealed package in the hands of the New Harmony Banking Company, — at most his bailee; the banking company did not know at the time the package was received what it contained, except as disclosed by the indorsement thereon “valuable papers”; they knew nothing further until after Fifer’s death. The package containing the deed was in fact absolutely under the control of Fifer. By the terms of the indorsement thereon, it could be delivered to' no one else, except it be by his order. He disclosed nothing to the banking company whatever. If the package had been deiposited by Fifer, just as it was deposited, and without any indorsement whatever upon it, it would still have been absolutely within his control and subject to his order, he-
It follows from what we have said that the deeds which were signed and acknowledged by Levi Eifer and placed by him with the New Harmony Banking Company were never delivered to the grantees named therein, and are for that reason void.
Judgment reversed, with instruction to the lower court to sustain appellants’ motion for a new trial.
Black, Comstock and Wiley, J. J., concur. Eoby and Robinson, J. J., dissent.