69 Ind. App. 352 | Ind. Ct. App. | 1919
This was an action brought in the Tipton Circuit Court to set aside two deeds, to quiet title, and for partition of certain real estate, located 'in the city of Tipton, Tipton county, Indiana. There was a judgment in favor of the appellees. After motion for a new trial, the appellant prosecutes this appeal.
Errors relied upon for reversal are: (1) The court erred in its conclusions of law upon the special findings of fact. (2) The court erred in overruling -the appellant’s motion for a new trial
The appellant assigned as grounds for a new trial: (1) The finding of the court is not sustained .by sufficient evidence. (2) The decision of the court is not sustained by sufficient evidence. (3) The finding of the court is contrary to law. (4) The decision of the court is contrary to law. Other grounds are assigned, but, for the purpose of this decision, it is not necessary to set them out.
The facts involved in this suit are set out in the special findings, which are as follows: “(1) That Henry Binkley and Mary E. Binkley, in their lifetime, were husband and wife, and owned as tenants by the entirety the following described tracts of real estate in Tipton county, Indiana, to wit: Lot three (3), Shank and Innis addition to the town, now city
“ (2) That on or about the tenth day of September, 1907, the said Henry Binkley and Mary E. Binkley, husband and wife, executed a deed of warranty to Clara B. Binkley, a copy of which said deed is in the words and figures as follows, to wit:
“ ‘This Indenture Witnesseth, that Henry Binkley and Mary E. Binkley, husband and wife, of Tipton county, in the State of Indiana, convey and warrant to Clara B. Binkley, of Tipton county, in the State of Indiana, for the sum of one dollar and other considerations, the following described real estate in Tipton county, in the State of Indiana, to wit: Lot three (3), Shank and Innis addition to the town, now city of Tip-ton, Indiana; also lot number one (1) in block thirteen (13), in the original plat of the town, now city of Tipton, Indiana. The grantors reserve a life estate in the property hereby conveyed. In witness whereof the said Henry Binkley and Mary E. Binkley, his wife, have hereunto set their hands and seals this........day of................1900.
“ ‘Henry Binkley (Seal)
“ ‘Mary E. Binkley (Seal)
“ ‘State of Indiana, Tipton County, SS.
“ ‘Before me, the undersigned, a notary public in and for said county, this 10th day of September, 1907, Henry Binkley and Mary E. Bink*356 ley, his wife, acknowledged the execution of the annexed deed.
“ ‘Witness my hand and notarial seal this 10th day of September, 1907.
“ ‘William E. Oglebay (Seal)
“ ‘Notary Public.
“ ‘My commission expires October 28,1908.’
“ (3) That by the following instrument in writing, to wit:
‘Tipton, Indiana, September 10th, 1907, to W. E. Oglebay. This deed, executed by us as grantors to Clara B. Binkley as grantee, is now given to you for her, and is to be delivered to her by you at our death, subject to recall by the grantors and grantee, jointly and not otherwise.' Witness our hands the day and year above written. Henry Binkley, Mary E. Binkley.’—
said deed above set out was delivered to William E. Oglebay as the agent of Clara B. Binkley, and so remained in his possession until his death, in the year 1912.
“(4) That after the death of said William Ei Oglebay, his son, Fred S. Oglebay, without the order, direction or authority of any one, and without the knowledge and consent of Clara B. Binkley, grantee in said deed, delivered said instrument and deed in writing by which said deed was delivered to his said father, William E. Oglebay, to Mary E. Binkley, one of the grantors in said deed. That said deed was never at any time recalled by the grantors, Henry Binkley and Mary E. Binkley, and the grantee, Clara B. Binkley, jointly or in any other manner.
“ (6) That on the eighth day of May, 1915, the said Henry Binkley executed a warranty deed to Emma K. Jolly, a copy of which deed was in the words and figures as follows, to wit:
“ ‘This indenture witness, that Henry Binkley, surviving husband of Mary E. Binkley, being unmarried and over the age of twenty-one years, of Tipton county, in the State of Indiana, convey and warrant to Emma K. Jolly, of Tipton county, in the State of Indiana, for and in consideration of one dollar and love and affection, the receipt of which is hereby acknowledged, the following described real estate in Tipton county, in the State of Indiana, to wit: Lot five (5) in block one (1), in John P. Kemp’s first addition to the city of Tipton, Indiana, in witness whereof, the said Henry Binkley, unmarried and over the age of twenty-one years, has hereunto set his hand and seal this 8th day of May, 1915.
‘ ‘ ‘ Henry Binkley. ' (S eal)
“ ‘State of Indiana, Tipton County, SS.
“ ‘Before me, the undersigned, a notary public, in and for said county and state, this 8th day of May, A. D. 1915, personally appeared the within named Henry Binkley, unmarried and over the age of twenty-one years, the grantor in the above conveyance, and acknowledged the same to be his voluntary act and deed, for the uses and purposes herein mentioned. In witness*358 whereof, I have hereunto subscribed my name and affixed my official seal.
“ ‘John A. Swoveland (Seal)
“ ‘Notary Public.
“ ‘My commission expires January 15th, 1919.’
“ (7) That the said Henry Binkley inténded to retain within himself, by the terms of said deed, a life estate, but that by error and omission of the scrivener of said deed, said reservation was not recited in said deed.
“ ‘This indenture witness, that Henry Binkley, to the said Emma K. Jolly the said Henry Binkley delivered said deed to Emma K. Jolly, and that upon his request, and by mutual agreement of said Henry Binkley kept said deed in his possession after the delivery thereof as aforesaid.
“(9) That the said Henry Binkley collected the rents and profits from all the real estate hereinbefore described, paid the taxes and insurance on the same and exercised the control thereof until his death. That both the said deeds to the said Clara B. Binkley and the said Emma K. Jolly were in the secretary of the said Henry Binkley at the time of his death.
“(10) That the said Henry Binkley died on the fourth day of December, 1915, and left surviving him, as his sole and only heirs at law, or otherwise, the plaintiff, Eva G. McColley, a granddaughter, and only child of Nora Gary, deceased, who was a daughter of said Henry Binkley, she having died prior to the death of said Henry Binkley, and the defendants, Clara Binkley, Emma K. Jolly, and Harry A. Binkley, his children.
“(11) That Clara B. Binkley’s deed was recorded
There is no controversy as to the facts in this case, either as revealed by the evidence or as determined by the court in its findings. The controlling question relates to the delivery of the two deeds which the appellant is seeking to have set aside. In order that we may determine whether such a delivery has been made as will pass the title, it is necessary that we keep before us the following well-established principles of law:
‘ ‘ This deed, executed by us, as grantors to Clara B. Binkley, as grantee, is now given to you for her and is to be 'delivered to her by you at our death, subject to recall by the grantors and grantee, jointly and not otherwise
With this instrument of writing in the hands of Mr. Oglebay, as the authority under which he' was holding the deed in question, and'by which he was authorized to deliver it to the grantee named therein, it is apparent that had the grantors and the grantee recalled the deed from his hands, had they demanded its return to the grantors, he would have been compelled to return it to them, and the title to the real estate described in the deed would have remained in them; but, if at the time of such attempted recall, the deed had passed beyond the control of the grantors, then it was delivered and had. operated as a transfer of title, and its return to the grantors, even with the consent of both the grantors and the grantee, could not operate as a retransfer of the title, for, if a deed once becomes effective, it cannot be defeated by any act, either of the grantor or the grantee. Devlin, Real Estate §300. This deed had not reached this stage, for it was subject to recall, and hence had not passed beyond the control and dominion of the grant
We are unable to determine, from the issues in this action, as to the equities involved between the parties, and we are not informed whether there are any questions of .advancements that should be determined. Opportunity should be given to amend the pleading and reform the issues, if desired.
Judgment is reversed, with instructions to grant a new trial.