149 Ind. 427 | Ind. | 1898
This was an action by appellees against appellant and his grantee; one James M. Hummel, to enforce in favor of appellees a lien alleged to exist upon a certain forty acres of land, by virtue of a conveyance thereof made to appellant. From the complaint it appears that the appellant is the son, and the appelles are the grandchildren, of one Sarah I. Thompson, who departed this life intestate May 9, 1888, her husand having died before her. On September 9,1879, the said Sarah I. Thompson was the owner
It is contended by appellant that the complaint is insufficient, for the reason that no demand is shown. In the very similar case of Pruitt v. Pruitt, 91 Ind. 595, it was held that, the time for payment being fixed in the contract, no demand was necessary. The deed in this case provided that the money should be paid to •appellees by their uncle on their coming of age, respectively, and this time was ascertainable on inquiry. The court did not, therefore, err in overruling the demurrer to the complaint.
The appellant filed an answer in which it was averred that at the time of making the deeds the said Sarah I. Thompson and her husband were old and infirm; that the land so disposed of was all the property that either she or her husband then or at any time thereafter owned; that she and her husband,.being unable to work and earn their living thereby, believed that said forty acres of land would afford them necessary maintenance during their natural lives, and desired, in case the rents and profits of the land were sufficient so to support them, that, on their death, the property should go to her son, subject to the payments to her grandchildren provided for in the deed; that she and
There is no doubt that, in the making of the deed referred to in the complaint, Mrs. Thompson designed to give the property which she should have left at her death and the death of her husband to her son and her minor, grandchildren, and it is equally clear that the deed was accepted by her son with the agreement that he would pay to the grandchildren the consideration in their favor named in the deed. As a general rule, such- a deed is irrevocable, without the consent of the beneficiaries. By the reconveyance, appellant could, of course, as he did, consent to the revocation of the deed, but such action on his part could not bind appellees. As said in Pruitt v. Pruitt, supra, the delivery of the deed to appellant, containing the provision for paying the money to the appellees, became, as to Mrs. Thompson, an executed gift of appellant’s promise to pay the money. The placing of the deed upon record operated in favor of appellees as well as • of appellant. From the beneficial character of the provision for appellees, an acceptance may be presumed. In the case of minors, no formal acceptance of a gift is required in order to make it binding. The law implies an acceptance, even though the infant is ignorant of the gift. It becomes binding and irrevo
But it is averred in the answer that the donor here did intend to reserve in her deed a right to revoke the same, in case it should turn out that the income from the property should not be sufficient for her support and that of her husband, besides paying the necessary expenses of caring for the property; and that, through her own ignorance and mistake and that of the scrivener, such reservation was not put in the deed. We are inclined to think that Mrs. Thompson herself might have secured a revocation or a reformation of her deed by giving evidence in support of allegations . such as those made in this answer. If she could, it is not apparent why she might not attain the same end by revoking her deed in the manner disclosed in the answer.
As said in Ewing v. Wilson, 132 Ind. 223, “it is too well settled to admit of controversy that parol evidence is competent for the purpose of proving fraud or mistake,” and also: “It is an elementary rule that parol evidence is competent to prote the consideration of a deed, and a rule of like elementary character is, that parol evidence is admissible even where there is no fraud or mistake to show facts surrounding the execution of an instrument.” See also Ewing v. Bass, ante, 1.
As further said in the two cases last cited, it ap
It is to be remembered that this was not, strictly speaking, a contract between Mrs. Thompson and appellees, but a gift by her to them. They had given nothing for what was promised them in the deed; and while, in general, a gift, under such circumstances, will be upheld in favor of a donee who is unwilling that it should be revoked, and particularly in favor of a minor for whom the law makes an acceptance, and who is himself unable to relinquish such gift, yet the reasons for upholding a contract do not obtain in all their force in favor of sustaining a simple gift, whether inter vivos or causa mortis. Equity will set aside such a voluntary gift when it is made to appear that the donor did not intend to make it irrevocable, or where the settlement would be unreasonable or improvident for lack of a provision for revocation. Mrs. Thompson had the first right to the use of her property; and if, through kindness to her son and grandchildren, she forgot what might be needed for her own and her husband’s feeble old age, and so, improvidently, deeded to them what she herself required to live upon, and which she never intended to give up, so far as might be necessary for her sustenance, then the deed resulting from
In Garnsey v. Mundy, 24 N. J. Eq. 243, a voluntary deed of trust, reserving no power of revocation, made with a nominal consideration, and without legal advice as to its effect, and when there was evidence that its effect was misunderstood by the grantor, was set aside, and a reconveyance ordered; and it was there further held that the fact that the grantor’s infant children were beneficiaries under the deed would not prevent the relief. See note to this case, 13 Am. Law Reg. 345. See, also, Everitt v. Everitt, L. R. 10 Eq. 405, and Woolaston v. Tribe, L. R. 9 Eq. 44. In Coutts v. Acworth, L. R. 8 Eq. 558, it was said: “The party taking a benefit under a voluntary settlement or gift containing no power of revocation, has thrown upon him the burden of proving that there was a distinct intention on the part of the donor to make the gift irrevocable. And, where the circumstances are such that the donor ought to be advised to retain a power of revocation, it is the duty of the solicitor to insist upon the insertion of such power, and the want of it will in general be fatal to the deed.” Whether this English statement of the rule is too strong we need not say. It is enough, in this case, that the facts admitted to be true by the demurrer to the answer show that Mrs. Thompson’s deed was improvident, that she needqd the property for herself and her aged husband, that she intended to retain the right to revoke the gift, and that it was only by her own ignorance and mistake, and that of the scrivener, that a clause to show
Judgment reversed, with instructions to overrule the demurrer to the answer.