58 Ind. App. 659 | Ind. Ct. App. | 1915
Appellee filed in the Sullivan Circuit Court, a complaint in four paragraphs. Tbe first two paragraphs are in tbe usual form to quiet title, the difference between them being, that one of them alleges a legal title, and tbe other alleges an equitable title, to tbe two tracts of real estate (hereinafter designated as lots), in controversy.
A demurrer to each paragraph was overruled. Appellant filed an answer in general denial and an affirmative answer in which he alleges, in substance, that appellee conveyed to him the lots in controversy by deed; that such deeds were delivered and accepted; that appellant took possession of the lots thereunder and that such deeds were made by appellee for the purpose of defrauding his creditors. Appellant also filed a cross-complaint to quiet title to such lots, which was answered by a general denial. On the issues so tendered there was a trial by the court and a general finding for appellee. Appellant filed a motion for new trial which was overruled, and the court rendered judgment for appellee, quieting his title to the lots.
Errors are assigned challenging each of the rulings on the demurrers to the several paragraphs of complaint and the ruling on the motion for new trial. In his brief, appellant presents no question as to the ruling on the demurrer to either paragraph of the complaint, or as to any of the grounds of Ms motion for new trial other than those which, respectively, charge that the decision of the trial court is not sustained by sufficient evidence and is contrary to law.
It is contended by appellant that the evidence will in no event sustain a judgment on the second paragraph of complaint because it counts on an equitable title; that if the deeds in question were not, in fact, delivered appellee is
The continued possession and control of the deeds by appellee after he had them recorded 'and the general conduct of both appellant and appellee with reference to them, as above indicated, was some evidence tending at least to overcome the presumption of delivery, arising from the act of having the deeds recorded. 4 Ency. Evidence 250; see also, cases cited supra. Judgment affirmed.
Note.—Reported in 108 N. E. 780. As to delivery of deeds, see 16 Am. Dec. 35; 58 Am. Rep. 289; 53 Am. St. 537. Delivery of deed by