Wainwright Trust Co. v. Stern

72 Ind. App. 116 | Ind. Ct. App. | 1920

Bemy, P. J.

—Suit by appellant, under §1243 Burns 1914, Acts 1897 p. 125, against the appellees to quiet title to, and for the partition of, certain real estate. Disclaimers were filed by appellees Stern and Sópher. Appellee Bell filed answer in denial, also cross-complaint asserting title to the real estate in controversy, and asking that Ms title thereto be qMeted. Appellant’s answer in denial to the cross-complaint closed the issues. Trial by court resulted in a finding and judgment for appellee Bell.

It will not be necessary to consider any of the assigned errors except the alleged error of the trial court in overruling appellant’s motion for new trial, and only the specification in such motion that the court erred in the admission of certain evidence.

The facts shown by the evidence which are not in dispute are as follows: . On May 2, 1901, appellee Bell and his wife signed and acknowledged what purported to be their warranty deed conveying certain real estate, including the real estate in controversy, to their three minor children, to wit, Everett L., Eva and Elizabeth. The deed was in proper form and was duly recorded in the recorder’s office on December 12, 1901. On November'12, 1917, and before any of the persons named in the dped as grantees had arrived at the age of twenty-one years, said Everett L. died intestate, and thereafter the Wainwright Trust Company was appointed administrator of his estate.

Appellee Bell’s said daughters Eva and Elizabeth, who were also named as grantees in said deed, are the other appellees herein, both daughters having married after the execution of the deed, and before the commencement of this suit.

1. The only controverted fact at the trial was as to the delivery of said deed, it being the contention of appellee Bell that there had been no delivery of the instrument. The fact that the deed had been duly recorded .in the recorder’s office after it had been signed and acknowledged by the grantors named therein constituted a prima facie delivery and acceptance by the grantees. Colee v. Colee (1890), 122 Ind. 109, 23 N. E. 687, 17 Am. St. 345. This prima facie delivery and acceptance may, however, be rebutted by evidence showing that there was in fact no delivery of the instrument. Townsend v. Millican (1913), 53 Ind. App. 11, 101 N. E. 112.

2. During the progress of the trial, appellee Bell, as a witness in his own' behalf, was permitted, over appellant’s objection, to testify that said deed had never been delivered to said decedent, but had at all times been in possession of witness. The competency of Bell as a witness to testify to such facts was challenged on the ground that the testimony was as to a transaction between witness and decedent which had taken place during the lifetime of the decedent; witness being a party to the suit, and whose interest was adverse to the estate. The admission of the testimony was reversible error. §521 Burns 1914, §498 R. S. 1881; Reddick v. Keesling (1891), 129 Ind. 128, 28 N. E. 316; Taylor v. Duesterberg (1887), 109 Ind. 165, 9 N. E. 907; Zimmerman v. Beatson (1907), 39 Ind. App. 664, 79 N. E. 518, 80 N. E. 165.

Judgment reversed, with instructions to grant a new trial.