74 Ind. 115 | Ind. | 1881
This was an action for partition, in which .John Williams, the appellee, was plaintiff, and Nancy Long the appellant, and a considerable number of others, nearly all lineal descendants of one John White, deceased, were defendants. The complaint alleged that John White died intestate, in 1888, seized, amongst other tracts, of an eighty-acre tract of land, in Shelby county, the tract of which partition was demanded, and leaving a widow and six children; that the tract in controversy was afterwards assigned to the widow during her life as and for her dower interest in the lands •of hecr said late husband; that, in 1848, the plaintiff had in
The facts as found by the court, and the conclusions of law drawn from them, so far as any question is made by this appeal, were as follows: That on the 4th day of December,. 1838, John White died intestate, leaving Margaret White as his widow, and Nancy White, now Nancy Long, Elizabeth-White, afterwards Elizabeth Engler, now deceased, Sarah-White, afterwards Sarah Wallace, now also deceased, Phebe White, also since deceased, Joseph White, also now dead,, and William White, who has also since died, as his children,, surviving him ; that the said John White died seized, amongst other lands, of the eighty-acre tract described in the complaint ; that dower in the lands of her late husband was as—
Upon these facts, the court came to the conclusion that, at the death of John White, each of his children became entitled to one undivided sixth part of the land designated 'in the complaint, subject to the life-estate of their mother therein; that the plaintiff became the owner of the undivided interests of the said Nancy, Joseph and William in said land by their said deed of the 11th day of January, 1851, to him ; that said deed, as to the said Nancy, was voidable, and might have been disaffirmed by her within a reasonable time after her arrival at the age of twenty-one years; that the dower interest of her mother in the land afforded no sufficient excuse for her delay in disaffirming her deed, within such reasonable tíme after arriving at full age ; that, having failed
The court came to further conclusions, upon other facts found by it, as to the interests which the other defendants had acquired in the land, to all of which conclusions of law the said Nancy by her counsel excepted.
Partition of the land was then decreed and made, setting-off to the plaintiff nineteen thirty-sixth parts as his share therein, and otherwise disposing of the residue.
Error is assigned by Nancy Long, who alone appeals : 1. Upon the sustaining of the demurrer to the first paragraph of the cross complaint. 2. Upon the conclusions of ’ law drawn by the court from the facts as found by it.
The appellant contends that the acknowledgment of the * deed set out in the first paragraph of her cross complaint was so fatally defective, when considered with reference to the law in force at the time it was taken,, as to- render the deed void as to her, and that, for that reason the-court erred' in sustaining the demurrer to that paragraph. The second' paragraph of the cross complaint, however, set out the deed and the acknowledgment, in the same manner as the first,. and the question argued upon the acknowledgment was as - well presented by the second as by the first paragraph. If,,
The appellant further contends that, as her mother was in the lawful possession of the land during her, the said mother’s, natural life, the ancient and best established method of disaffirming a deed, by entry on the land, would have been unauthorized and unavailing, and that, by analogy, any other mode of disaffirmance would have been equally ineffectual, during the lifetime of the mother; and that a reasonable time for the disaffirmance of the appellant’s deed had not elapsed between the time of the mother’s death and the commencement of this suit. As applicable to the doctrine thus contended for by the appellant, it may be said—
Eirst. That there are in this State several well recognized modes of disaffirming a voidable deed. The disaffirmance may be by entry upon the land, by a written notice of disaffirmance, by a subsequent conveyance, or by any other equally emphatic act, declaratory of an intention to disaffirm. Law v. Long, 41 Ind. 586; Scranton v. Stewart, 52 Ind. 68. The appellant might, therefore, have disaffirmed by other means than an entry upon the land.
Secondly. That it is the act of disaffirming which destroys a voidable deed, and not the proceedings which may be taken to give force and effect to the disaffirmance after it has been made. Potter v. Smith, 36 Ind. 231.
It was not necessary that the appellant should have been in a position to recover the possession of the land when she disaffirmed her deed to the appellee. She might have brought an action to quiet her title without being entitled to possession. 2 E. S. 1876, p. 254, sec. 611.
The possession of her mother was, therefore, no excuse
We see no error in the proceedings below. The judgment is affirmed, with costs.