Adams v. Merrill

• Decision Date: 25 June 1908
• Docket Number: No. 6,146.,6,146.
• Citation: 45 Ind.App. 315,85 N.E. 114
• Parties: ADAMS et al. v. MERRILL.
• Court: Indiana Appellate Court

45 Ind.App. 315

85 N.E. 114

ADAMS et al.

v.MERRILL.

No. 6,146.¹

Appellate Court of Indiana.

June 25, 1908.

Appeal from Circuit Court, Steuben County; J. W. Adair, Judge.

Action by Martha Keoka Adams and others against Alvah B. Merrill. Judgment for defendant, and plaintiffs appeal. Reversed, with instructions.Frank M. Powers and Brown & Carlin, for appellants. Cyrus Cline and Walter Olds, for appellee.

MYERS, P. J.

The appellant by their complaint and the appellee by his cross-complaint sought to quiet title to certain real estate in Steuben county. The case involves the construction of a certain deed of conveyance of said real estate, and the question is presented by the assignment of errors based on the action of the court in overruling the demurrer of the appellants to the first paragraph of the cross-complaint and its ruling sustaining the appellee's demurrer to the second paragraph of second amended complaint.

The plaintiffs, appellants here, Martha K. Adams, William H. Adams, her husband, and their three children, Mabel L. Adams, Earl B. Adams, and Myra P. Adams, alleged in substance that Lewis Barnard was the owner April 18, 1877, of the real estate described, and on that day he and his wife, Hattie Barnard, executed to Luzette Merrill the deed in controversy, as follows: “This indenture witnesseth that Lewis Barnard and Hattie Barnard, his wife, both of Steuben county, in the state of Indiana, convey and warrant to Luzette Merrill, of Steuben county, in the state of Indiana, for the sum of five hundred dollars, the following real estate in Steuben county in the state of Indiana, to wit [describing the land]. By this conveyance, the said Luzette Merrill is to have and to hold the use of the lands above described during her natural life, and upon her death the absolute title in fee simple to the above-described lands shall vest in the children and heirs of the body of the said Luzette Merrill. In case the said Luzette Merrill shall die without leaving any heirs of her body living at the time of her decease, then upon the death of the said Luzette Merrill, the title to one-third of said lands shall vest in one Ira Merrill, the husband of the said Luzettte Merrill, and the title to the remaining two-thirds of said land shall vest in the heirs of the body of one Martha K. Adams, sister of the said Luzette Merrill. In witness whereof,” etc.

At the time of the execution of the deed in question the grantor was an old man in poor health, and Luzette Merrill and Martha K. Adams were his only children then living. The conveyance was made and intended by the grantor, and was accepted by the grantee, as a gift in consideration of love and affection; and on the same day Lewis Barnard executed to Martha K. Adams a deed conveying other real estate owned by him. The consideration of $500 mentioned in the deed to Luzette Merrill was not paid, nor was any part of it paid, nor was it intended by the parties at the time of the execution of the deed that said pecuniary consideration or any part of it should be paid. The land so conveyed to Luzette Merrill was at the time of the conveyance of the fair cash value of $10,000. The deed was duly recorded November 13, 1877. The grantor and his wife, who joined in the conveyance, were divorced on his petition to the circuit court of Steuben county, February 6, 1878, and Lewis Barnard, the grantor, died intestate, December 17, 1883, leaving Luzette Merrill and Martha K. Adams his only children and heirs at law. Ira Merrill, named in the deed, was the husband of Luzette Merrill at the time of the execution of the deed and thereafter until February 7, 1898, when he died intestate. At the date of the deed Luzette Merrill had a daughter, her only child, Belle Merrill, born August 5, 1876, who died intestate, October 5, 1894, leaving no children or lineal decendants, and she never was married. Luzette Merrill died intestate, May 28, 1902, leaving no children or heirs of her body surviving her, and she never was married after the death of Ira Merrill. September 9, 1896, on the petition of Ira Merrill and Luzette Merrill, it was adjudged and decreed by the circuit court of Steuben county that John Alva Bolin and his sister, Lula May Bolin, be, and by said judgment and decree they were, adopted by Ira Merrill and Luzette Merrill as heirs at law, and that their names were changed to Alva B. Merrill and Lula B. Merrill. Said adopted heirs were not related by consanguinity to Lewis Barnard or Luzette Merrill or Ira Merrill. Lula B. Merrill, formerly Lula May Bolin, died intestate, December 20, 1900, unmarried and leaving no children or lineal descendants. Said Alva B. Merrill was made a defendant, and he is the sole appellee here. It was alleged that he was claiming some interest in the real state under and by virtue of said adoption, and not otherwise, which claim was alleged to be adverse to the claim of the appellants, unfounded, and a cloud upon their title. It further was shown that the appellant William H. Adams at the time of the execution of the deed was, and he still continued to be, the husband of the appellant Martha K. Adams, mentioned in the deed, and still living, and the other plaintiffs, appellants here, Mabel L. Adams, Earl B. Adams, and Myra P. Adams, were the only children and “heirs of the body” of Martha K. Adams. Mabel L. Adams was born September 7, 1876, before the execution of the deed, and lewis Barnard, the grantor, well knew at the time of the execution of the deed of the existence of Belle Merrill and Mabel L. Adams. Earl B. Adams was born October 29, 1878, and Myra P. Adams was born May 12, 1883. None of the persons mentioned in the deed, and none of the parties to this cause, have ever conveyed or alienated or attempted to convey or alienate said lands or any part thereof. Luzette Merrill at the time of said conveyance entered into possession of the lands under and by virtue of the conveyance, and she held possession thereof continuously until her death, when the appellants entered into possession of the lands, and ever since they have been, it was alleged, “the owners in fee simple of the above-described real estate.” The cross-complaint of the appellee set forth the facts without essential difference from the averments of the complaint.

It is contended on behalf of the appellee that by the premises of the deed the grantor conveyed all the title he had to Luzette Merrill, who thereby took an absolute title in fee; and that the language of the habendum is repugnant to the granting clause, and is void, or that if the deed shall not be so construed, the words “children and heirs of the body” in the deed designate two classes of persons, and the word “children” carries the title to the appellee, an adopted child, living at the death of Luzette Merrill; otherwise, the words “heirs of the body” must prevail, and by virtue of our statute the deed conveyed the fee simple absolute to Luzette Merrill, and the title passed from her to the appellee by descent. It is true that by virtue of section 3958, Burns' Ann. St. 1908, the deed, in the absence of the disposing provisions following the description of the land, referred to in argument as the habendum, would have been sufficient to transfer the title in fee simple to Luzette Merrill, with full covenants. We are therefore to consider what influence, if any, should be given to those provisions following the description. The statute also provides (section 3960, Burns' Ann. St. 1908): “It shall not be necessary to use the words heirs and assigns of the grantee, to create in the grantee an estate of inheritance; and if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed.” It is proper to consider whether the grantor, who did not use the words “heirs and assigns” in the instrument, “the deed,” expressed his intention to convey any estate less than the fee simple absolute to the first taker. Under the statutes a grantor may use the words “convey and warrant” without using the words “heirs and assigns of the grantee” and yet may effectually express “in the deed,” though after the description of the land as in this deed, his intention to convey an estate less than an estate of inheritance to the first taker.

In Prior v. Quackenbush, 29 Ind. 475, the deed executed in 1837 contained the words “heirs and assigns” of the grantee, and therefore the deed without more words would have been sufficient to pass title in fee simple to the grantee; but effect was given to a qualifying clause at the close of the deed, and the first taker was held to have received a life estate with remainder to two persons named in the qualifying clause, which defined the sense in which the word “heirs” in the preceding portion of the deed was to be taken, and restricted it to the two persons so named in the qualifying clause. There was no conflict between provisions of the deed, but the meaning of one portion was defined by another portion.

In Carson v. McCaslin, 60 Ind. 334, Abel and his wife by their deed, executed in 1864, granted, bargained, sold, and conveyed to “Hervey McCaslin and his heirs and assigns forever” real estate described, “to be held by the said Hervey McCaslin for and during his natural life, and to Sarah McCaslin (his now wife), if she be living at the death of said Hervey McCaslin, and to her heirs and assigns in fee simple; and if she be not living at the death of the said Hervey McCaslin, then to the heirs and assigns of the said Hervey McCaslin forever.” The court, considering the deed as a whole, held that there was not “such a repugnance or contradiction between the premises of the deed in question and the habendum as renders the latter void,” that Hervey McCaslin was to take the land for life at all events, and his heirs the fee, if he should survive his wife, but if she should survive him the fee was to be vested in her.

In Edwards v. Beall, 75 Ind. 401, the...