Blair v. Whitaker

• Decision Date: 24 November 1903
• Citation: 31 Ind.App. 664,69 N.E. 182
• Parties: BLAIR v. WHITAKER.
• Court: Indiana Appellate Court

31 Ind.App. 664

69 N.E. 182

BLAIR

v.WHITAKER.

Appellate Court of Indiana, Division No. 2.

Nov. 24, 1903.

Appeal from Superior Court, Vanderburgh County; John H. Foster, Judge.

Action by Florence Whitaker against Samuel D. Blair. From a judgment for plaintiff, defendant appeals. Affirmed.

A. P. Twineham and Chas. M. McRoberts, for appellant. W. E. Stillwell, Thomas W. Cullen, and Henry Kister, for appellee.

WILEY, P. J.

Suit by appellee to quiet title. The cause originated in the Gibson circuit court, where a trial resulted in her favor. Appellant took a new trial, as of right, under the statute, and thereupon the venue was changed to the court below, where it was again tried, with a like result. Appellant moved for a new trial on the ground that the finding was contrary to law and was not supported by sufficient evidence, and for alleged error in admitting certain evidence. Appellant grounds his right to a reversal solely on the insufficiency of the evidence. Appellee claims title by virtue of deeds which were not recorded within the statutory period, but avers in her complaint that appellant purchased the real estate with full knowledge of the unrecorded conveyances to her while she was in possession. In view of the facts as disclosed by the evidence, it is important to state the material averments of the complaint. It is alleged that on February 19, 1897, Henry Robinson, John Robinson, and Julia A. Jordon were the owners of the undivided two-thirds of the real estate in controversy, which on said day was conveyed to appellee; that said deed was executed before one Gilmore, a justice of the peace; that it was sent to the recorder's office to be recorded; that the recorder returned it to appellee to be corrected; that she immediately delivered it to said Gilmore for correction; that while in his possession he died, and that after his death said corrected deed was found, dated February 19, 1897, but not until after appellant had obtained a deed to the same land from a part of the said parties; that, immediately after the purchase of said real estate, appellee took possession of it; that she has ever since remained in possession and occupied it, and that she has made valuable improvements thereon; that on the 26th day of June, 1897, Julia A. Jordon, Mack Lucas, and Julia Lucas, formerly Julia Robinson, were the owners of the other undivided one-third interest in said real estate, and on said day conveyed the same to one William M. Stewart, who conveyed the same to appellee on or about the 1st of July, 1897; that said deed had been lost, without any fault of appellee, and cannot be found; that she immediately took possession of said one-third interest in said real estate so conveyed, and has remained in possession ever since; that before said deed was corrected as aforesaid, and after appellee had purchased all of the land in controversy, appellant quietly and secretly obtained, with full knowledge of appellee's rights therein, a warranty deed from the said John and William Robinson, Mack Lucas, and Julia Lucas to said real estate, together with other lands in the immediate vicinity thereof, subject to the life estate of said Julia A. Jordon, and had such deeds properly recorded. It is averred that said deeds to appellant are a cloud upon her title, etc. Both parties claim title by purchase from the heirs and devisees of one William J. Jordon, deceased.

The decision of the case rests upon the application of the law to the following facts: William J. Jordon died testate, the owner of several tracts of real estate, including the 40 acres in dispute. By his will he bequeathed to his wife, Julia A. Jordon, in fee, certain of his real estate, and gave her a life estate in all of his lands. The lands in which he gave a life estate to his wife at her death vested in fee in William H. Robinson, John Robinson, and Julia Robinson, who were children of the testator's sister. February 19, 1897, Julia A. Jordon and William H. and John Robinson conveyed by warranty deed to appellee the undivided two-thirds of the real estate in question. That deed was executed before one Gilmore, a justice of the peace, and was tendered to the recorder to be recorded within the statutory period, but he refused to record it because of some defect. It was thereupon returned to the justice of the peace before whom it had been acknowledged for correction; was, in fact, corrected, but never recorded until August 27, 1900. June 26, 1897, Julia A. Jordon, Mack F. Lucas, and Julia Lucas, née Robinson, conveyed by warranty deed to William M. Stewart all their interest in and to the 40-acre tract in controversy. This deed was not recorded, and when it was executed Julia Lucas was a minor, while her husband was over the age of 21 years. About July 1, 1897, William M. Stewart conveyed the same land to appellee, which deed was lost, and hence not recorded. July 31, 1897, John Robinson conveyed to appellant all of his interest in the real estate, subject to the life estate of Julia A. Jordon. August 2, 1897, William H. Jordon made a like conveyance to appellant. December 27, 1897, after Julia Lucas had arrived at full age, she conveyed-her husband joining her-to appellant all the interest Julia A. Lucas had in and to the real estate under the will of William J. Jordon, subject to the life estate of his widow. These three last deeds were duly recorded. When the deeds above specified were executed to appellee, she took possession of the real estate, made valuable improvements thereon, and has remained in possession ever since. Appellant owned other real estate in the same vicinity, and he and his son, who was his agent in purchasing the interest that the Robinson boys and their sister had in the real estate under the will of Jordon, were frequently in the neighborhood; and, to our judgment, the evidence clearly shows that they knew appellee was in possession of the real estate here in dispute. On the day that Mrs. Lucas and her husband executed their deed to appellant, she reacknowledged the deed which she had made to Stewart. These facts all stand unchallenged, and the disputed question of fact is, did appellant have notice or knowledge of the several conveyances from the Robinsons and Mrs. Lucas to appellee before he received his deeds of conveyance from them? A mixed question of law and fact also arises on appellant's assumption that the conveyance of Mrs. Lucas to him after she became of age was a disaffirmance of her former conveyance to Stewart.

We will first consider the disputed question of fact as to appellant's knowledge. The evidence does not bring notice to appellant himself, and, if he had notice, it was through his agents. Both of the Robinson boys were ignorant and illiterate. They could neither read nor write, and their signatures to all of the deeds are by mark. Their sister, Mrs. Lucas, could barely write her name and read. The evidence does not disclose any dishonesty on their part, for it is not pretended that they sold their interests in this land to appellee, and afterward tried to dishonestly profit by again selling it to appellant. On the contrary, the evidence shows that in their conveyances to appellant they did not know this particular tract was included, and in fact did not intend to include it. In the negotiations leading up to and including the execution of deeds to appellant and the payment of the money, John Blair, a son of appellant, and one Edward Moore, were representing him as his agents. The evidence establishes beyond all question such agency. On the day that William H. Robinson executed his deed to appellant, Guy Whitaker, husband of appellee, had a conversation with John Blair, in which he told him of the trade by which he (meaning his wife) had bought the land; that the deed had not been recorded, and that John Blair said to him that he understood that trade, and understood that they had bought the land; that Whitaker said to him he was afraid there would be trouble about it, and he replied there would not be; that he put that tract in the deed for fear there should be a mistake; that he wanted to wait until he bought the next heir, Julia Lucas...