45 Ind. App. 664 | Ind. Ct. App. | 1909
Sarah J. Pethtel, a childless second wife, and Mary East, a daughter by a former marriage, of William Pethtel, deceased, institued this proceeding for the partition of certain real estate. The complaint is in the usual
On December 3, 1904, certain of the defendants, severing from their codefendants, filed their cross-complaint against plaintiffs and against all other codefendants, setting out that Sarah J. Pethtel is a widow, and that all other cross-defendants were children and grandchildren of AVilliam Pethtel, deceased, and that they are the owners of the real estate in the same proportion as alleged in the complaint; that William Pethtel died seized of the lands described; that certain codefendants (appellants) have a deed for said real estate made in the lifetime of William Pethtel; that the deed never was delivered to them; that they (appellants) wrongfully placed the deed of record in the recorder’s office in Greene county, Indiana (setting out a copy of the deed), and alleging that the procuring and placing of said deed of record has cast a cloud on the title of the real estate; that the cross-complainants are the absolute owners; that said deed was void and should be canceled, and praying that said deed be set aside and partition made, etc.
On February 13, 1905, appellants filed their cross-complaint against plaintiffs and their codefendants, alleging that they are the owners in fee simple of the land described in the complaint, and also described in their cross-complaint, and that they are the owners in fee simple of all of said real estate; that plaintiffs and their said eodefendants claim an interest in said real estate, which interest is without right and unfounded, and a cloud upon their title, and asking that the title be quieted in them as against all of the plaintiffs and codefendants.
Issues were formed upon both the complaint and the cross-complaints by answers in general denial. Two trials were
The controlling question is whether there was a delivery of the deed.
“If the deed is placed in the hands of a third person, as the agent, servant, friend, or bailee of the grantor, for safekeeping only, and not for delivery to the grantee; if the fact that the instrument is a deed is not made known to such third person, either at the time it is handed over, or at any time before the death of the grantor; if the name of the grantee, or other description of him, is not given; and if there is no evidence beyond the mere fact of such delivery of the intent of the grantor to part with his control over the instrument and his title to the land, then such transfer of the mere possession of the instrument does not constitute a delivery, and the instrument fails for want of execution. ’ ’ See, also Fifer v. Rachels (1901), 27 Ind. App. 654; Stout v. Slout (1902), 28 Ind. App. 502.
“It is understood that, as a condition of this deed, the grantor is to have and hold possession of the premises and occupy and control and manage the same as he may see fit during his natural life. ’ ’
Meredith survived the grantor, who never called for the deed. The deed remained, with Yoho until the day after the death of the grantor, when it was handed by Mm to William T. Pethtel, who had it recorded in the proper records in the recorder’s office.
It is argued that in view of the fact that the widow was claiming one-third interest for life in the real estate, this evidence was competent to show that she should have had no interest in this controversy. As it is admitted that no such contract had ever been found, and so far as the evidence shows no such contract was ever entered into, we think there was no error committed.
Judgment affirmed.