39 Ind. App. 482 | Ind. Ct. App. | 1906
The complaint of the appellee against the appellant, filed August 12, 1904, contained two paragraphs. In the first it was sought, in the ordinary short form, to quiet the appellee’s alleged title in fee simple to the west half of the southwest quarter of a certain section of land in Noble county, excepting sixty acres off of the south end thereof. In the second paragraph the appellee sought both to quiet his title to, and to recover possession of, certain real estate described as commencing at a point on the west line of the west half 'of the southwest quarter of said section, thirty chains north of the southwest corner thereof; thence east to a.point on the east line of said west half, thirty chains north of the southeast corner thereof; thence south on said east line one and twenty hundredths chains; thence west to a point on said west line one and twenty hundredths chains south of the place of beginning; thence north on said west line to the place of beginning, containing two and one-half acres of land. There was an answer of general denial, and the cause was tried by the court, special findings being rendered. The facts were stated substantially as follows: January 16, 1885, James M. Harrison was the owner in fee simple of the real estate in Noble county described as follows: “The west half of the southwest quarter” of said section. On that day he sold and agreed to convey by deed to John P. Magers sixty acres of land off of the south end of said west half, and Magers on that day purchased said sixty acres of said Harrison. On the same day, in consummation of said sale and purchase, Harrison and his wife executed to Magers a deed duly acknowledged, describing
The special findings show the making of a number of intermediate conveyances, by deeds duly acknowledged and recorded, transmitting the title from Magers to Jacob Hornet, father of the appellant, and the conveyance November 18, 1902, from said Jacob Hornet to the appellant by deed duly acknowledged, recorded June 23, 1903, “under which deed the defendant is now holding as grantee.” In all these deeds the description of the land conveyed was the same as in the deed from Harrison to Magers. June 5, 1885, Harrison, “being still the owner in fee simple of all of said
It was stated by the court that it was the intention and purpose of Harrison and Josephine Dumbeck that this deed should convey to the latter all of said west half, excepting sixty acres off of the south end thereof, “which land the court, construing said deed in the light of the extrinsic facts shown by the evidence, finds as a fact is the land that was conveyed to said Josephine by said deed, and that she became the owner in fee simple of said real estate by virtue of said deed, which deed was, on June 18, 1885, recorded in said deed records.” It was- further found that July 2, 1891, Josephine Dumbeck and her husband, the appellee, executed to Amanda E. Worden a deed, duly acknowledged, whereby they conveyed to her twenty acres off of the north end of said west half, and on that day said Amanda, who was unmarried, conveyed said real estate to the appellee, by a deed duly executed and acknowledged; that both of these deeds were on said day recorded in said deed records, and by virtue of said deed last described the appellee he-
It was further found that the west half of said southwest quarter of said section twenty-eight is, and since the original survey thereof by the United States has been, thirty-nine and forty hundredths- chains north and south on each of the sides thereof, twenty and ninety hundredths chains wide east and west across the south end thereof, and twenty and seventy-seven hundredths chains wide across the north end thereof, and that it contains eighty-two and nine hundredths acres of land; that the tract' of sixty acres off of the south end thereof is bounded on the north by a line parallel
The court stated as conclusions of law: (1) That the appellee ■ was entitled to judgment against the appellant quieting the appellee’s title to the real estate described in the first paragraph of the complaint; (2) that the appellee was entitled to judgment against the appellant for the possession of the real estate described in the second paragraph of the complaint; (3) that the appellee was entitled to judgment against the appellant for costs.
In its judgment the court described the land referred to in the first paragraph of the complaint as follows: The west half of the southwest quarter of section twenty-eight, in township thirty-three north, range eleven east, excepting sixty acres off of the south end thereof, all in Noble county, Indiana, and described the land referred to in the second paragraph of the complaint as follows: Commencing at a point on the west line of the west half of the southwest quarter of section twenty-eight, township thirty-three north,
Harrison being the OAvner of the entire west half of the southwest quarter of section twenty-eight, conveyed a portion thereof January 16, 1885, to Hagers, the remote grantor of the appellant. Subsequently, June 6, 1885, Harrison executed his deed of conveyance to Josephine Dumbeek, and through this conveyance whatever title is in the appellee was derived, so far as is shown by the special findings. It could not effectually, as against the appellant, embrace any portion of the land previously conveyed by the duly recorded deed of the same grantor to Hagers. In the conveyance, to Hagers the land was described, as shoAvn by the special findings, as “sixty acres off of the south end of the west half of the southwest quarter of section twenty-eight, township thirty-three north, range eleven east, more
In Kellogg v. McFlatter (1904), 111 La. Ann. 1038, 36 South. 112, the owner of the north half of a certain section made a conveyance to A. E. Minor of “one hundred acres off the east portion of the north half of” said section, which was surveyed, and possession was taken by the grantee. Afterward the same grantor conveyed to E: D. Minor “eighty acres off the west portion of the
In Wuesthoff v. Seymour (1871), 22 N. J. Eq. 66, a conveyance of real estate described it by metes and bounds, with the addition, “being the same premises conveyed to” this grantor by a deed identified. The metes and bounds did not include a small strip which was included in the description in the deed to which reference was thus made. It was held that the deed so referred to controlled, this being the evident intention of the parties. It was said: “The two descriptions of this property thus given in this deed do not agree. And the question is, which of the two must be taken. Each description is certain, definite and complete, if it stood alone. There is a latent ambiguity, which does not appear on the face of the deed, but by extrinsic facts which show that these two descriptions differ. This ambiguity, like other latent ambiguities, can be solved by ascertaining the intention of the parties from the situation of the property.” In Coogan v. Burling Mills (1878), 124 Mass. 390, 393, it was said to be a settled rule that, although a reference to a recorded deed may not always be construed to exclude a parcel already described by metes and bounds, yet such reference must convey additional land described in the deed referred to, unless otherwise controlled. Boone v. Clarke (1889), 129 Ill. 466, 21 N. E. 850, 5 L. R. A. 276, was a case where the owner of a tract of land had conveyed to Judd for a right of way for a railroad company a strip of land “one hundred fifty feet wide, being seventy-five
Without regard to the question as to whether there is any technical objection to the manner of presenting the matter, we are of the opinion that there was no available error in the refusal of the court to regard this evidence as establishing an estoppel as suggested. Neither party was making any claim of title under this deed; and if their titles were fixed and determined, as we have held, by the deeds of prior date, they could not be affected favorably or adversley by. the deed of 1891 for property not then owned by the grantor. If the' appellee saw fit, through
Judgment affirmed.