151 N.E. 627 | Ind. Ct. App. | 1926
This was a suit by appellant to quiet his alleged title to the undivided one-third of 178 acres of land in Warren county, Indiana, subject to the life estate of appellee Ella J. McGahan. Appellee Ella J. McGahan filed a demurrer to the complaint. Appellees Laura and Abram Harmon were defaulted. The court sustained said demurrer to the complaint and appellant refusing to plead further, the court rendered judgment that he take nothing by his complaint, from which judgment, this appeal.
The complaint avers that on October 29, 1903, appellant's father. Simeon McGahan, was the owner in *501 fee simple and in possession of the land in controversy, and, on that date, conveyed the same to his wife, appellee Ella J. McGahan, for life, and, at her death, the remainder to himself, by a deed which reads, so far as here involved, as follows, to wit:
"This Indenture Witnesseth, That Simeon McGahan of Benton County, in the State of Indiana, Convey and Warrant to Ella J. McGahan his wife of Benton County, in the State of Indiana, for the sum of $10,000, the following described real estate, situated in Warren County, in the State of Indiana, to wit: (description)
"And for a further consideration that at the death of Ella J. McGahan that the above described land shall revert back to Simeon McGahan."
That the said Ella J. McGahan was the wife of the said Simeon McGahan at that time, and living with him on said lands, and the said Simeon McGahan had, at said time, two children, appellant and appellee Laura, intermarried with said Abram Harmon, both of whom surviving; that thereafter, the said Simeon McGahan died intestate, leaving surviving him, as his sole and only heirs at law, his said widow, and his said children. That appellant is the owner, by virtue of said deed and the death of said Simeon McGahan, of the undivided one-third of all of said lands, subject to an estate for the life of the said Ella J. McGahan, his mother.
As appellant says, the whole case hinges upon the construction of the words "Simeon McGahan convey and warrant to Ella J. McGahan for the sum of $10,000."
"And for a further consideration that at the death of Ella J. McGahan that the above described land shall revert back to Simeon McGahan."
In Prior v. Quackenbush (1868),
At the conclusion of the deed in controversy in the PriorCase, which would have conveyed a fee simple, the following clause was inserted: "N.B. Now, the foregoing deed of conveyance is, and forever shall be, with this express condition, that the foregoing * * * piece or parcel of land shall, at the death of said Catherine Roe, be forever thereafter in Elizabeth Stewart and Louisa Stewart, and that they, the said Elizabeth and Louisa, are the only heirs contemplated in the foregoing deed of conveyance." It was held that the deed gave only a life estate to Catherine Roe, with the remainder in fee to Elizabeth and Louisa Stewart. In Carson v. McCaslin (1878),
It was held that there was not such a repugnance or contradiction between the premises of the deed in question and the habendum as to render the habendum void, and that Hervey McCaslin took an estate which terminated at his death.
In Edwards v. Beall (1881),
Doren v. Gillum, Sheriff (1894),
On rehearing, in Adams v. Merrill (1908),
Appellant has justly criticised our opinion in Shoe v.Heckley (1922),
Affirmed. *506