Booker v. Tarwater
| Decision Date | 20 June 1894 |
| Docket Number | 16,875 |
| Citation | 37 N.E. 979,138 Ind. 385 |
| Parties | Booker et al. v. Tarwater |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
The judgment is affirmed.
W. C Hultz, W. R. Nesbit, J. T. Beasley and A. B. Williams, for appellants.
J. S Bays, for appellee.
The appellants sued the appellee for partition of real estate situate in Sullivan county. Upon the issues formed there was a trial by the court without a jury; and upon proper request the court made a special finding of the facts, and stated its conclusion of law in favor of the appellee, whereon he had judgment. It is contended that the court erred in its conclusion of law, and this is the only error assigned.
The substance of the special finding is that on January 24, 1865 Bazzle Carrico was the owner in fee-simple of the land in controversy (describing it), and that his wife Frances was living at the time; that at that time they had a son living named Francis Carrico who had three children living, named respectively, Mary J., Truston, and Frankie, aged six, four and one year, then living with their father; that on that day said Bazzle and wife made a deed purporting to convey said real estate "to Francis Carrico's heirs," which deed was duly acknowledged and filed in the proper recorder's office on the same day, by whom it was so filed being undisclosed, and it was recorded August 9th, 1867; that when said deed was so left in the recorder's office said Francis Carrico and his family, consisting of his three infant children and wife, their mother, moved upon and took possession of said lands and farmed the same, cleared parts thereof and continued to so occupy the same until April 5, 1869; that Truston Carrico died in 1875 intestate, leaving surviving him as his only heirs at law his father and mother, said Francis Carrico and wife, and his sisters, Mary J., and Frankie; that on September 5, 1875, said Mary J. Carrico intermarried with Henry Booker, and is the Mary J. Booker who is one of the plaintiffs (appellants); that said Frankie, on August 16, 1884, intermarried with the plaintiff, Robert Whitlock, and they had born to them as the only issue of said marriage one child, viz: Lizzie Whitlock, one of the plaintiffs, appellants herein; that said Frankie died intestate at said county in 1890, leaving as her only heirs said Robert, surviving husband, and said child Lizzie; that said Mary J., Robert and Lizzie have not, nor have either of them, conveyed any interest in said real estate to any person or persons; that on April 5, 1869, said Francis Carrico, son of said Bazzle, claiming to be the owner of said lands by virtue of said deed from said Bazzle Carrico and wife to the heirs of said Francis Carrico, executed a warranty deed, his wife joining therein, for a valuable consideration, purporting to convey said lands to Josiah Carrico, who went into possession and occupied, claiming title to said land under said deed until February 10, 1870, when he and his wife executed a warranty deed purporting to convey the same to Fountain Land; that said Land went into possession, claiming title under said deed until the 13th day of November, 1872, when he executed a warranty deed, his wife joining therein, purporting to convey the same to Josiah Carrico for a valuable consideration; that said Josiah Carrico went into possession and occupied said land under said last mentioned deed, claiming title thereunder until the 26th day of September, 1874, when he executed a deed to John Crance, his wife joining therein, purporting to convey said lands to said Crance for a valuable consideration; that said Crance went into possession and occupied, claiming to own the same by virtue of said deed, until the 23d day of August, 1875, on which day he made a warranty deed, his wife joining therein, purporting to convey said lands to William G. Carrico for a valuable consideration; that he went into possession, occupied and claimed to be the owner of said land by virtue of said deed until the 13th day of June, 1879, when he made a quitclaim deed, his wife joining therein, purporting to convey said lands to William A. Neal for a valuable consideration; that said Neal went into possession thereof, and while in possession he caused an abstract of title to said lands to be made, and said Neal was advised that he did not have a good title legally to said lands by virtue of said deed, because the deed of Bazzle Carrico and wife to the heirs of said Francis Carrico was void; that said Neal thereupon, pursuant to the advice of his attorney, for the purpose of perfecting his title to said lands and securing a good legal title thereto, procured all the legal heirs of said Bazzle Carrico, then deceased, excepting Andrew L. Carrico, James H. Carrico, Sarah E. Purcell, and Francis Carrico, to execute quitclaim deeds purporting to convey their undivided interests in said lands to said Neal; that, further, to complete and perfect his legal title to said lands said Neal, on the 13th day of June, 1879, instituted a suit against said Andrew L. Carrico, James H. Carrico and Sarah E. Purcell, heirs at law of Bazzle Carrico, deceased, in the Sullivan Circuit Court, said Neal claiming and alleging in his complaint in said suit that he and the said Andrew L. and James H. Carrico and Sarah E. Purcell were the owners of all said lands as tenants in common, the said Neal, the owner of 39/42 thereof in fee, as purchaser thereof from the heirs of said Bazzle Carrico, and each of the then defendants the owner of 1/42 part thereof in fee as heirs of said Bazzle Carrico, deceased; that such proceedings were had in said suit that said court adjudged said facts to be true as alleged in said complaint, and that said lands could not be divided without injury to the owners thereof, and the same were sold under the order of the court to said Neal by a commissioner appointed by the court for that purpose, who executed a deed pursuant to said sale, which was approved and confirmed by the court. And said Neal thereupon continued in possession, occupied and claimed to own said lands by virtue of his deeds from William G. Carrico as remote grantee of Francis Carrico, an heir of said Bazzle Carrico, from the other said heirs and widow of said Bazzle, deceased, and from said commissioner until the 22d of January, 1880, when he, said Neal, executed a warranty deed, his wife joining therein, purporting to convey said lands to John H. Driver, who took possession, occupied the same under claim of ownership by virtue of said deed from said Neal until the 30th day of May, 1882, when he executed a like deed to another, who, in like manner, took possession under said deed and occupied, claiming to own said lands by virtue thereof, and thereafter, through numerous mesne conveyances from said Neal, each grantee going into possession under claim of ownership until the 21st day of August, 1891, the then holder under said mesne conveyances executed a warranty deed purporting to convey said lands to the appellee, William Tarwater for a valuable consideration, who also took possession under said deed, and now holds possession of said lands, claiming title thereto by virtue of said deed; that each and all of said deeds were duly recorded in the recorder's office of said county within the time allowed by law therefor; that said Bazzle Carrico died in said county in 1870, and that said Francis Carrico had no grandchildren living on January 24, 1865, and no other children living than said Mary, Truston and Frankie; that said Truston at no time conveyed any interest in said lands; that said Francis Carrico died in 1886, intestate.
The conclusion of law stated upon these facts is: "That the defendant (the appellee) is the owner of the lands set out and described in the complaint, and entitled to the possession thereof, and that the plaintiffs (the appellants) take nothing by their complaint herein."
The question that lies at the threshold of the case is, whether the deed from Bazzle Carrico to "Francis Carrico's heirs" conveyed any interest in the land to anybody. Strange as it may seem, counsel for appellants simply assert in their brief that "The deed...
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