Anderson v. Anderson

• Decision Date: 06 June 1890
• Docket Number: 14,318
• Citation: 24 N.E. 1036,126 Ind. 62
• Parties: Anderson et al. v. Anderson et al
• Court: Indiana Supreme Court

24 N.E. 1036

126 Ind. 62

Anderson et al. v. Anderson et al

No. 14,318

Supreme Court of Indiana

June 6, 1890

Petition for a Rehearing Overruled Nov. 15, 1890.

From the Washington Circuit Court.

Judgment reversed, at costs of appellees, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

J. A Zaring, M. B. Hottel, D. M. Alspaugh and J. C. Lawler, for appellants.

S. H Mitchell and R. B. Mitchell, for appellees.

OPINION

Olds, J.

This is an action by the appellants against the appellees for the partition of certain real estate. The appellees, Eli W. Anderson and Edmond Anderson, answered the complaint, and filed separate cross-complaints, setting up title to certain portions of the land described in the complaint; each setting up, in his cross-complaint, that his father, Aaron Anderson, deceased, in his lifetime, conveyed a certain portion of the land sought to be partitioned to him; that Aaron retained a life-estate in the same, and asked to be adjudged the owner. They also, in another paragraph, alleged the conveyance; that the deed had never been recorded, and, without their fault, the deeds had been lost, or destroyed; that in pursuance of such conveyances the grantor had placed the grantees in possession of their respective tracts; that they had since held exclusive possession of the same, and relying on such conveyances had made valuable improvements. The complaint alleges that Aaron Anderson died the owner of said lands, and that the parties derived title to their respective shares by inheritance from him. Issues were joined and a trial had, resulting in a verdict and judgment in favor of said appellees, Eli W. and Edmond Anderson, for their respective tracts of land. Appellants filed a motion for a new trial. The first cause for a new trial is, that "the verdict of the jury is not sustained by sufficient evidence." The motion for a new trial was overruled and exceptions reserved, and this presents the principal question in the case.

It is contended by counsel for the appellant that there is no evidence establishing the fact that Aaron Anderson in his lifetime executed deeds of conveyance to Eli W. and Edmond Anderson for the lands described in the cross-complaints of Eli W. and Edmond Anderson, and therefore there is no evidence authorizing a verdict in favor of either of them on their cross-complaints. If the evidence does not establish the execution of deeds by Aaron Anderson to his sons Eli W. and Edmond, for the respective tracts claimed by them, then the court erred in overruling the motion for a new trial, and the judgment must be reversed.

There is some evidence from which the jury may have found that Aaron Anderson in his lifetime, in the latter part of May, 1885, went to the recorder's office in the county in which he resided, and had made out deeds to Eli W. and Edmond Anderson for the respective tracts claimed by them in their cross-complaints, and signed and acknowledged the same; that the deeds were, in form, warranty deeds, reserving to said Aaron a life-estate in each tract; but the vital question in the case is as to whether such deeds were ever delivered or not.

The very strongest phase of the evidence in support of a delivery is to the effect that Aaron Anderson and his son Eli W. Anderson, and his family, lived in one house, the father having his bed, a bureau, and some other articles of furniture in one room, which he occupied, and which was also occupied by the family of Eli W. for a sitting room, and in which they also had some articles of furniture. The father also had a tin box which sat upon the mantel in the room in which he kept his deeds, and other papers. Eli W. also kept some papers in the box, but the box belonged to his father.

After signing and acknowledging the deeds the grantor Aaron took them and brought them home in envelopes, and put them in the tin box on the mantel in the room occupied by him as hereinbefore stated, and they remained in the box until a short time before his death. He died on March 9th, 1886. While the deeds were in the box, in the absence of the father, and without his consent, Eli W. and Edmond opened the box and saw and read the deeds, but did not take them. A few weeks prior to his death he stated to a third person that he had no land, that he had deeded it to his sons; that Nelson had his deed, and Eli W. and Edmond's deeds were in the box for them. He never told either Eli W. or Edmond that the deeds were in the box, or directed them to take the deeds, or said anything to them about delivering the deeds to them, or either of them. Immediately after Aaron's death search was made for the deeds, and they were not to be found, and were not in the box where they had been kept, nor did they ever come into the actual possession of Eli W. or Edmond, or either of them.

The wife of Edmond testified that Aaron said to her that he had said to Edmond he had given the farm to her and Edmond.

A daughter of Nelson Anderson testified to her grandfather, Aaron Anderson, handing her these deeds in envelopes in the fall before he died; one endorsed deed to Nelson, one deed to Eli W., and one deed to Edmond, and asked her to pick out the deed of her father's. She did so, and he placed it in the bureau drawer. She testified that she then went out, leaving her grandfather with the other two deeds in his hands.

There is evidence to show that Aaron...