67 Ind. App. 66 | Ind. Ct. App. | 1918
This is an action by appellant against appellees to quiet title to real estate. The complaint is in three paragraphs. In the first paragraph appellant bases her action on a legal title. In the second paragraph she bases her action on an equitable title. In the third paragraph she bases her action on a legal title acquired by a certain deed executed to her by one Horace Dawley. , The appellees, other than Francis M. Reynolds, filed an answer in general denial, and the latter filed ú disclaimer. The case was tried by the court without the intervention of a jury, and judgment was rendered against appellant, and in favor of appellees for costs. Appellant filed a motion for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law, and that the court erred in excluding certain evidence. Appellant has assigned errors by which she challenges the action of the court in overruling her motion for a new trial.
On the trial it was admitted that one Horace Dawley was the owner of the real estate in question on December 23, 1913. Appellant claims to be the owner of the same by virtue of a deed of that date, executed to her by said Dawley. The preparation, signing and acknowledging of such a deed is not denied by appellees, but they claim that the same was never delivered, and base their defense on such fact. This requires a consideration of the evidence, as the de-' livery of such deed is the vital question in the determination of this appeal. The only evidence on the trial of the case was introduced by appellant and was,
“Item 3. I hereby authorize and appoint my executor to sell the ninety acres of land, in section thirty-two in Nottingham township undisposed of by deed and from the proceeds to give to my beloved son, N. W. D'awley, one thousand dollars and divide the remainder among the following, to-wit: Anna Whitlock, Dora Sarber, N. W. Dawley, Arlie Miles, Ella Smithson and Minnie Swigert equally share and share alike.”
This was substantially all the evidence given on the trial.
If the deed is placed in the hands of a third person, as the agent, servant, friend, or bailee of the grantor, for safe-keeping 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.” Applying this rule to the undisputed facts, we are forced to the conclusion that the evidence fails to establish a delivery of such deed. The evidence shows that after the deed had been prepared and acknowledged, it was placed in an envelope with the deed to Mrs. Miles and will of Mr. Dawley; that such envelope with its contents was placed with other papers, and tied together with a string, making a package three or four inches thick; that such package was taken by Mr. Dawley to the First National Bank of Montpelier, where he rented a safety deposit box in its vault; that he placed or caused such package to be placed in such box for safe
It is apparent from the evidence that it was the intention of Horace Dawley to give appellant the real estate described in her complaint, and that he fully
We find no error in the record; Judgment affirmed.
Note. — Reported in IIS N. B. 970. Deeds: delivery, 16 Am. Dee. 39, 58 Am. Rep. 289, 53 Am. St. 537; possession by grantor at bis death as negativing delivery, 44 L. R. A. (N. S.) 528, See under (1) 13 Cyc 562.