53 Ind. App. 11 | Ind. Ct. App. | 1913
— This was an action brought by appellee to quiet title to certain real estate. The complaint was in two paragraphs, to each of which a demurrer for want of facts was filed and overruled. There was a general denial and an answer pleading the statute of limitations. A reply in denial closed the issues, and they were tried by the court without the intervention of a jury. The court made a special finding of facts and stated conclusions of law thereon. Appellants’ motion for a new trial was overruled, and judgment rendered in favor of appellee.
The errors assigned and relied on for reversal are the actions of the trial court in overruling appellants’ demurrers to the first and second paragraphs of complaint, in overruling appellants’ motion for a new trial, and in stating its first conclusion of law.
As it is conceded by both parties to this appeal that the judgment rests on the first paragraph of complaint, we need not consider the question presented by the demurrer to the second paragraph.
The facts specially found by the court are substantially the same as those stated in the first paragraph of the complaint.
The facts as disclosed by the special finding, so far as they are necessary to this opinion, are, in substance, as follows: In the year 1878 plaintiff became the owner of the land in question, went into possession thereof, and resided thereon until February, 1886, on which date he married and moved to other lands in Hamilton County. Prior to the marriage of plaintiff, his father and mother and their children, including plaintiff, resided on the land as a family, and after plaintiff moved away he rented the real estate from year to year, up to and including the time of the trial, to his brother, Thomas Millican, one of the defendants, to farm the same, retaining a share of the proceeds for himself and delivering a share to their father for support. About February 9, 1886, the plaintiff, then contemplating marriage, and not in good health, and for the purpose of providing a home for his father and mother, that they might remain on the land in question during their lifetime, signed and acknowledged a warranty deed, purporting to convey the land to his sister, Amanda L. Townsend, one of the defendants. Plaintiff had this deed recorded the same year, but at all times retained it in his possession and control, except at the time it was in the hands of the recorder, and did not at any time deliver the deed to his sister, the grantee named therein, or either of her codefendants, or to any one, and the execution and recording of the deed by plaintiff was without any intention or purpose on his part of transferring the ownership of the farm or any part of it. Prior to the execution of the deed, it was agreed between plaintiff and his sister, Amanda L. Townsend, that the deed should not pass the title to the real estate to her, and that the deed should not be delivered,’but
The court further found that defendants were claiming an interest in and to the real estate, which interest was adverse to plaintiff’s rights, was without right and unfounded, and a cloud on plaintiff’s title, and that plaintiff was entitled'
Under the facts stated in the complaint and set out in the special findings, we are required to determine whether the legal title to the land in question was in Madison Millican at the time this action was commenced.
If it was, the judgment of the trial court should be affirmed; if not, it should be reversed. This is the pivotal question in the case.
The legal title to this real estate was in Madison Millican, unless it passed from him to his sister by the deed which he signed and acknowledged on February 9, 1886. This deed was afterwards transferred for taxation and recorded, and by its terms it purported to convey the legal title. If the conduct of appellee in having the deed transferred for taxation and recorded, when considered in connection with the other facts alleged and specially found, amounted to a delivery of the deed, the title passed, but if there was no delivery of the deed, the title did not pass.
In discussing the question presented by counsel to sustain his contention that the facts specially found are not sufficient' to sustain the first conclusion of law stated by the court, we have disposed of the principal objections urged against the complaint. The court has considered the other objections pointed out, but is of the opinion that they cannot be sustained. The complaint is sufficient.
Judgment affirmed.
Note. — Reported in 101 N. E. 112. See, also, under (2) 13 Cyc. 561; (3) 13 Cyc. 561, 565; (4) 13 Cyc. 730; (5) 38 Cyc. 1986; (6) 29 Cyc. 837. As to what is delivery of a deed, see 53 Am. St. 537. For a discussion of the delivery of a deed for a deposit by the grantor for registration, see 7 Ann. Cas. 226.