49 Ind. App. 263 | Ind. Ct. App. | 1911
Lead Opinion
On May 3, 1909, Robert B. Tansel, as administrator of the estate of Robert B. Myers, deceased, filed his verified petition in the office of the clerk of the probate court of Marion county, Indiana, alleging, in substance, that decedent died intestate; that he left no personal property with which to pay debts, but that at the time of his death he owned an undivided half interest in certain real estate in Marion county, Indiana, the interest therein being valued at $600, and praying for authority to sell said interest to pay debts
He also averred in his petition that decedent left surviving him two granddaughters, Blanche Smith and Clara Alley, his sole and only heirs at law, who, with their respective guardians, were made parties defendant.
Defendant Alley answered in general denial, and Blanche Smith, through her guardian, filed a special answer, in which she averred that at the time of the death of her grandfather, Robert B. Myers, he had no title nor interest in the land described in the petition, but that she held title thereto, by virtue of a certain warranty deed executed to her by decedent in his lifetime; that after the deed was signed, it was placed in the hands of one Vance, who was at the time instructed to hold it until the death of Myers, and then deliver it to grantee; that said deed was delivered to her after the death of Myers. She also filed a general denial.
Appellant filed three paragraphs of reply; the first in general denial, the second admitting that Myers signed and acknowledged the deed, referred to in the action, but that there was no consideration for said instrument but love and affection, and that lie intended by the instrument to make a testamentary disposition of his real estate to the grantee; that he reserved to himself the right to recall and retake possession of the deed, and that he retained all right and ownership to the land up to the time of his death; that the deed was not recorded until March 8, 1909; that after he
The demurrer to this reply was overruled. The court tried the case below, and a judgment was finally entered in favor of defendant Blanche Smith on her first paragraph of answer. Appellant then filed a motion for a new trial. The overruling of this motion is the only error presented for reversal.
The following is a copy of the deed filed with the answer of appellee Smith:
“This indenture witnesseth, that Robert B. Myers, unmarried, of Marion county, in the State, of Indiana, conveys and warrants to Blanche Smith, of Marion county, in the State of Indiana, for the sum of $100, in hand paid, the receipt of which is hereby acknowledged, the following real estate in Marion county, in the State of Indiana, to wit; Beginning at the southwest corner of the southeast quarter of the northwest quarter of section twenty-four, in township fifteen north, of range two east; thence north forty rods; thence east thirty-two rods; thence south forty rods; thence west thirty-two rods, to the place of beginning, containing eight acres. This deed is subject to all the liens on the above-described property. The conditions of this deed are as follows, to wit: Robert B. Myers to retain the possession of the above-described property until his death, then to go to the above-named Blanche Smith. In witness whereof said Robert B. Myers has hereunto set his hand and seal this.... day of...., A. D., 190..
Robert B. Myers, (L. S.)
C. C. Vance,
O. A. Oyler.”
Vance and Oyler signed as witnesses.
“An instrument executed conformably to the statute, which is to operate in the' lifetime of the grantor, and which passes any estate in the property during the grantor’s lifetime, even though the absolute enjoyment of the estate passed is postponed until after the grantor’s death, is a deed, and not a will.” Spencer v. Robbins (1886), 106 Ind. 580. See, also, In re Will of Diez (1872), 50 N. Y. 88.
It appears from the evidence in this case that Myers was an old man in failing health. For a number of years he had lived with his granddaughter, the grantee, upon this land. Decedent had the deed prepared; then he signed and acknowledged it, and delivered it to Mrs. Vance. He told her that he had deeded the place to Blanche, and wanted Mrs. Vance, as soon as she heard of his death, to have the deed recorded. She testified that she brought the deed home with her and kept it in her possession until Myers died, when she had it recorded. At the time he handed the deed to her, there was not a word said by him about retaining possession of the instrument, or retaining any control over it.
The undisputed facts in this case force the conclusion that it was the intention of decedent so to place the title of the property involved that it should at once pass to the grantee upon the delivery of the deed to Mrs. Vance. He deposited the deed unconditionally, relinquishing all authority and control over it, and we must conclude that the custodian received it then for the use and benefit of the grantee.
Judgment affirmed.
Rehearing
Counsel for appellant have filed a petition for a rehearing, and a brief in support thereof, and they earnestly insist that the decision of this court contravenes the ruling precedent of the Supreme Court, as announced in the cases cited in their brief. We cannot agree with counsel in this contention. We have examined the cases referred to by them, and we firmly conclude that they are not in conflict with the views expressed in our original opinion.
The grantor reserved to himself no right to retake possession of it, and by the manner of its delivery he lost all control and authority over it. With such positive facts before us, this court could not do otherwise than to hold the deed to be a valid one, taking effect at the time of the delivery to said third person.
General creditors are not included within the provisions of the act, and its terms eanpot be so broadened and extended as to include them.
Appellant, being a general creditor, is not such a person against whom the instrument is'by statute declared to be null and void.
In the case of State Bank v. Backus (1903), 160 Ind. 682, 695, the Supreme Court of this State said: “The fraud which renders the instrument void as to general creditors is not the failure to record it, but the dishonest or illegal intent with which it was executed and received. It is settled in this State that, in the absence of express fraud, the failure of a mortgagee to record a mortgage within the time fixed by the statute will not, as against the general creditors of the mortgagor, either prior or subsequent, render it invalid. * * * The withholding of a mortgage from record is a fact which may be shown in connection with other facts tending to establish fraud in the execution of the instrument. * * * The giving of credit by the appellant to Backus, and its inability to collect its claims, cannot be justly attributed to the failure of Mrs. Backus to have her deed placed on record, nor can they fairly be regarded as the natural and probable consequences of that omission. In giving credit to Backus the appellant may have been influenced by many other considerations, such as his previous standing and character in the business community, his general reputation as a man of property, and his promptness
The petition for a rehearing is overruled.