166 Ind. 471 | Ind. | 1906
—Appellee brought this suit to reform a deed by striking out the name of Laura E. Potter, appellant, as grantee, and inserting her own, and to quiet title to the real estate described in said deed. Appellant Sylvester Gibbs answered by general denial. Appellant Laura E. Potter Gibbs, having unsuccessfully demurred to the complaint, filed an answer in four paragraphs. The second, third and fourth paragraphs were stricken out, leaving the general denial on file. Appellant Laura E.
Laura E. Potter Gibbs has separately assigned as errors, the overruling of her demurrer to the complaint, striking out her affirmative answers, sustaining appellee’s demurrer to her cross-complaint, and overruling her separate motion for a new trial. Appellants have jointly assigned as error the overruling of their motion for a new trial.
2. The complaint must be held sufficient as a suit to quiet title, unless the particular facts pleaded overthrow the general averments of title in appellee. It is alleged that Barrett and wife duly executed a general warranty deed conveying the land to appellee, and that afterwards by consent of the parties the name of the grantee in said deed was altered. It is well settled that the alteration or destruction of a deed subsequent to its full execution, although done by consent of the parties, will not divest the original grantee of title, or revest such title in the grantors. Rinker v. Sharp (1839), 5 Blackf. 185; Connelly v. Doe (1846), 8 Blackf. 320; Schaeffer v. Fithian (1861), 17 Ind. 463, 469; Old Nat. Bank v. Findley (1892), 131 Ind. 225, 230; Voiers v. Athins Bros. (1903), 113 La. 303, 36 South. 974; Tabor v. Tabor (1904), 136 Mich. 255, 99 N. W. 4; 9 Am. and Eng. Ency. Law (2d ed.), 163, and cases cited.
Appellants made seasonable and appropriate objection to evidence offered by appellee to prove the name of the grantee originally written in the deed, and the particulars in which it had been subsequently changed. Appellants’ chief contention in support of their motion for a new trial
Appellants cite in support of their position Wilson v. Cassidy (1851), 2 Ind. 562; Speer v. Speer (1855), 7 Ind. 178, 63 Am. Dec. 418; Thompson v. Thompson (1857), 9 Ind. 323. In the first case cited there was evidence that the deed was destroyed to defeat the collection of a threatened judgment, and the court stated that a voluntary surrender of a deed for destruction by the grantee for a fraudulent purpose would estop him and his heir from proving its contents by parol. However, the decision in that case was rested upon the sole ground that a delivery of the deed was not proved. In the case of Speer v. Speer, supra, the deed relied upon was destroyed without the consent of the grantee, and what was said as to the rule of evidence in a supposable case was not necessary to the decision, and accordingly not of binding force. In the case of Thompson v. Thompson, supra, the circumstances under which the alleged deed was lost or destroyed are not shown, but some doubt is cast upon the question whether the deed was in fact executed as claimed. In the absence of a satisfactory showing that a genuine deed was regularly executed and that its destruction or loss was not brought about by sinister motives we should not feel inclined to sanction the'hearing of secondary evidence from the one chargeable with the care and production of the original.
The rule upon which appellants rely is a wholesome and salutary one, but its application must in great measure depend upon the circumstances of the particular case. Its only aim is to promote the ends of justice by guarding against fraud and imposition, and it should not be so used as to defeat the sole purpose of its creation. In a case where a writing has been innocently altered or destroyed
In the case of Rudolph v. Lane (1877), 57 Ind. 115, 118, this court said: “Our understanding of the rule of evidence on this point is this, that where a party purposely, and apparently with a fraudulent design, destroys a writing, he will not be permitted to give parol evidence pi its contents, without first introducing evidence to rebut the suspicion of fraud arising from his act.” Citing, Joannes v. Bennett (1862), 5 Allen 169, 81 Am. Dec. 738; Blade v. Noland (1834), 12 Wend. *173, 27 Am. Dec. 126; Riggs v. Tayloe (1824), 9 Wheat. 483, 6 L. Ed. 140.
In the case of Old Nat. Bank v. Findley, supra, the court in discussing this subject said: “We should be strongly inclined to hold, if a judgment upon the point were required, that in a case such as this, where there is no evidence of wrong or evil design, and the act could not benefit the party, the voluntary destruction of a deed does not preclude the party from giving parol evidence of its contents.” See, also, Schlemmer v. Schendorf (1898), 20 Ind. App. 447; Baldwin v. Threlkeld (1893), 8 Ind. App. 312.
In the case at bar the alteration of the deed was not made to benefit appellee, but againsf her interests. It was not prompted by an evil design, but by generous and kindly impulses, and there can be no possible doubt of the particular terms of the deed before the alteration was made. The rule invoked by appellants is not applicable in this case, and no error was committed in admitting the parol testimony to which objection was made. Bagley v. Eaton (1858), 10 Cal. 126; Bank of the United States v. Sill (1823), 5 Conn. 106; Murphy v. Olberding (1899), 107 Iowa 547, 78 N. W. 205; Shields v. Lewis (1899), (Ky.),
The judgment is affirmed.