68 Ind. App. 30 | Ind. Ct. App. | 1918
This is a suit by appellee to quiet her title to a certain tract of real estate and for the partition of another tract. The controversy and the questions presented on this appeal relate solely to the first tract, and our discussion will be so confined.
The first paragraph of complaint is in the ordinary form of a suit to quiet title, and the land is therein described as follows:
“The following real estate situate in the county of Monroe and state of Indiana, to wit: The east half of the northwest quarter of the southwest quarter of section thirty-four (34) in township eight (8) north, in range two (2) west, also sixty acres bounded by parallel lines on the east end of the south half of the southwest quarter of section 34, township 8 north, range 2 west.”
The second paragraph of complaint describes the same land described in the first paragraph, sets out the relationship of the parties, alleges that on November 10, 1900, the grantor was the owner of the land described; that on said date he executed the conveyance in question and put appellee in possession of the land; that ever since that date she has been in possession of the real estate, and has made valuable improvements thereon and paid all taxes; that by mutual mistalie of the parties the said land was described in the deed as follows:
“The following real estate in Monroe county, in the state of Indiana, to-wit: The east half of the northwest quarter of the southwest quarter of section'34 in township 8 north of range 2 west, containing (20) acres more or less. Also sixty (60) acres of the east of the eighty (80) running*33 north and south leaving twenty (20) acres on the west.” (Our italics.)
In this paragraph appellee asks that the deed be reformed and her title. quieted. A general denial closed the issues. A trial by the court resulted in a general finding that appellee was the owner of the land described in her complaint and entitled to a decree quieting her title thereto. Judgment was rendered accordingly.
The error here relied on is the overruling of the appellants’ separate motion for a new trial.
Appellants contend: (1) That there is an entire absence of legal evidence to support the finding, and therefore the finding is contrary to law. (2) The description of the sixty-acre tract, in the deed in suit, is void for uncertainty, and conveys no title to said real estate. (3) There was no proof of the delivery of the deed.
We will consider these contentions in their inverse order. At the trial appellee produced and read in evidence a duly acknowledged deed signed by Eli Koons, by which deed the land in dispute is purported to have been conveyed to appellee on November 10, 1900. Eli Koons, the grantor, died in August, 1904. There was no further evidence one way or the other of the delivery of the deed. Whether or not it was delivered to appellee by her father in his lifetime is left wholly to inference, and depends upon the presumptions which obtain upon the facts as they appear.
The following principles of law are pertinent to appellants’ second contention, supra-.
It is not claimed by appellants that the description of the first twenty acres described in the deed is uncertain. With the twenty-acre tract out of the way, the only land left was the eighty-acre tract described in the complaint. The grantor owned no other land. Therefore the language of the deed, “the eighty” must necessarily have referred to the eighty acres in question, and that which was uncertain is made certain. The application of the remainder of the description, viz., “Sixty acres of the east of the 80 acres running north and south leaving 20 acres on. the west,”' is not difficult. This would require but an additional line run across the eighty-acre tract parallel with and far enough west of the east line to contain sixty acres.
We conclude that the description of the sixty acres comes within the rule announced supra, and parol evidence was admissible to apply the description to the subject-matter, and the introduction of parol evidence made the question of identification one of fact for the trial court. Symmes v. Brown (1859), 13 Ind. 318, 321; Warner v. Marshall, supra.
There was evidence from which the court was warranted in finding that the land to which appellee sought to have her title- quieted was the land intended to be conveyed by the deed.
Other questions relating to the right of reformation are not of controlling importance in view of the conclusions reached.
Judgment affirmed.
Note. — Reported in 119 N. E. 820. See under (1) 18 C. J. 196; (2) 18 C. J. 414;' (5) 18 C. J. 277.