Curtis v. Burns

• Decision Date: 05 June 1901
• Docket Number: 3,796
• Citation: 60 N.E. 963,27 Ind.App. 74
• Parties: CURTIS ET AL. v. BURNS
• Court: Indiana Appellate Court

60 N.E. 963

27 Ind.App. 74

CURTIS ET AL. v. BURNS

No. 3,796

Court of Appeals of Indiana

June 5, 1901

From Fulton Circuit Court; A. C. Capron, Judge.

Action by Nancy E. Burns against James Curtis and others to quiet title. From a judgment in favor of plaintiff, defendant James Curtis, appeals.

Reversed.

E Myers, G. W. Holman and R. C. Stephenson, for appellants.

M. L Essick, A. Metzler, I. Conner and J. Rowley, for appellee.

OPINION

BLACK, C. J.

The appellee, Nancy E. Burns, sued to quiet her title to certain land in Fulton county, alleging that she was the owner thereof in fee simple and that the defendants claimed an interest therein adverse to her rights, that their claim was without right and unfounded, and was a cloud upon her title. She obtained the relief prayed against the defendants, James Curtis, Daisy Merley, and Thaddeus Burch, of whom the first named alone assigns errors. It is claimed in his behalf that the court erred in sustaining the appellee's demurrer for want of sufficient facts to the fourth paragraph of his cross-complaint, in which he alleged that he was the owner in fee simple of the same land, describing it; that on the 25th of April, 1884, Matilda Curtis, then in life, but since deceased, was the owner in fee simple of the land, and on that day made her last will and testament, therein and thereby devising the land in question, then of the probable value of $ 1,000, to the cross-complainant, and certain other real estate of the value of $ 4,000 to the appellee; that soon thereafter the provisions of this will were fully made known to the devisees, who acquiesced therein; that the testatrix died about June 11, 1897, without having revoked or modified the will, which on the 4th of September, 1897, was duly probated; that by reason of the foregoing facts the cross-complainant is the owner in fee simple of the land in question; but the appellee is asserting title thereto in herself under and by virtue of a certain pretended deed from the testatrix, dated February 5, 1896; that at the date of this deed Matilda Curtis was of very great age, to wit, eighty-seven years of age; that she was wholly unlettered, being unable to read or write, and was greatly enfeebled in body and mind by reason of her great age sickness, and mental decay, and easily influenced by the acts and entreaties of others, and especially by the appellee and her husband, all of which the appellee well knew; that on or about December, 1895, the appellee and her husband moved into the home of the testatrix, and, taking advantage of her position as an occupant of the home of the testatrix and her influence over her, as aforesaid, and said Matilda's weak and enfeebled condition of mind and body, by the exercise of an undue influence, in this, by poisoning her mind against the cross-complainant, who, as appellee well knew, was a devisee named in said will of said real estate, by repeated entreaties and persistent solicitations, and by other means at the command of the appellee by which she could influence said Matilda, but the exact words or means used by the appellee the cross-complainant, it is alleged, is unable to state, induced said Matilda to sign said pretended deed, with the fraudulent purpose and intent of cheating and defrauding said Matilda, and through her the cross-complainant, out of his rights as herein averred; that in pursuance of said fraudulent purpose and design, and with a view to preventing discovery, the appellee concealed the fact that any such pretended deed had been signed by said Matilda, requested the notary who took the acknowledgment thereof to say nothing about what he had done in that respect, and withheld said deed from record for more than one year...