24 Ind. 478 | Ind. | 1865
This was an action for quieting title, brought by the appellees against the appellant, under the statute. 2 G. & H., § 611, p. 284. The complaint seeks to sot aside and declare void a paper purporting to have been executed by B. F. Morris, on the 29th of May, 1850, in his life time, to Noble and others, under which Noble claimed an interest in the lauds of the plaintiffs’ below. Noble answered, setting up a right under the paper sought to be set aside. The appellees demurred to the answer, and the court sustained the demurrer, and rendered judgment accordingly.
B. F. Morris and his wife held jointly the title to the land, by a deed made to them by Saunders. The entire purchase money wras paid by the wife. B. F. Morris had a set of children by a former marriage, and his wife had one child by a former marriage, who is the appellant, Noble; and Morris and his wife had two children by the last marriage, Samuel V., one of the appellees, and Clarissa, late the wife of Frederick Yeiser, one of the appellees, and the mother of the minor appellees of that name, B. F. Morris seems to have claimed no interest in the land except as husband of the purchaser, Margaret Morris; but as the title was in him and his wife jointly, he executed a paper to the children of Mrs. Morris, Noble, and Samuel V. and
“Now this indenture witnesseth, that the said Bethuel F. Morris, in consideration that the said tract of land was purchased with money belonging to the said Margaret E. Morris, doth convey and limit the descent of said land, with its appurtenances, on the demise of said B. F. and M. E. Morris, to the said W. II. L. Noble, Samuel V. Morris and Clarissa Morris, hereby confirming unto them the sole heirship in and to the said premises, to the exclusion of all others.
“In witness whereof, the said Bethuel F. Morris hath hereunto set his hand and affixed his seal, on the day and year first above written. B. E. Morris, [seal.]”
The instrument was duly acknowledged the same day before a justice of the peace.
On the 16th of June, 1857, B. F. Morris and wife conveyed to the appellant, by deed in fee, in severalty, a part of the real estate in controversy, and, on the 15th of December, conveyed in like manner to Samuel V. Morris and Clarissa M. Yeiser the residue of the lands in dispute.
The proper construction to be given to the writing of the 29th of May, 1850, presents the question for the consideration of this court. We think, under the facts recited in this instrument, that B. F. Morris held the land in trust for his wife. We are aware of the rule recognized in the case of Miller et al. v. Blackburn, 14 Ind. 62, but it is well settled that the vesting of the separate property of the wife in real estate, in the name of the husband,
There is a question of estoppel argued, but under our view of the case it does not arise. We do not think the writing of the 29th of May, 1850, inconsistent with the subsequent conveyances made by Morris and wife to the children of the latter; and, therefore, the court below committed no error in sustaining the demurrer to the defendant’s answer.
The judgment is affirmed, with costs.