Downie v. Buennagel

• Decision Date: 25 March 1884
• Docket Number: 9039
• Citation: 94 Ind. 228
• Parties: Downie v. Buennagel
• Court: Indiana Supreme Court

94 Ind. 228

Downie v. Buennagel

No. 9039

Supreme Court of Indiana

March 25, 1884

From the Superior Court of Marion County.

The judgment is affirmed, with costs.

W. W Herod, F. Winter and O. T. Boaz, for appellant.

J Hanna, F. Knefler, J. S. Berryhill, B. Harrison, C. C. Hines and W. H. H. Miller, for appellee.

OPINION

Howk C. J.

By a proper assignment of error here the appellant, the plaintiff below, has brought before this court the same errors assigned by him in general term, in this cause, which were in substance as follows:

1. The overruling of his demurrer to the second paragraph of appellee's answer;

2. Error of the court in its conclusion of law upon its special finding of facts; and,

3. The overruling of appellant's motion for a new trial.

The facts found by the court at special term, in its special finding, are substantially the same as those alleged by the appellee in the second paragraph of his answer, and these facts are fully sustained by the evidence appearing in the record.

The action was brought by the appellant to recover the possession of certain described real estate in the city of Indianapolis. Of this real estate the appellant claimed that he was the owner in fee simple and lawfully entitled to the possession; while the appellee claimed that he held the title thereto in fee simple and was lawfully in the possession thereof. Each of the parties claimed to derive his title to such real estate from the same common source.

The facts of the case are uncontroverted, and may be stated briefly as follows: In 1870, one Alanson G. Stevens died testate in Marion county, and seized in fee simple of the real estate in controversy. Afterwards, on the 18th day of June, 1870, the last will and testament of Alanson G. Stevens, deceased, bearing date on the 14th day of January, 1868, was duly admitted to probate by and before the clerk of the court of common pleas of Marion county, and recorded in the proper record of wills of such court and county. Of this last will and testament we set out so much as has any bearing upon the title to the real estate in controversy, as follows:

"Item. I give and devise to my beloved mother, Melissa E. Downie, all my property and estate, both real and personal, to hold and enjoy the same during her life, with full power to sell the same, or any part thereof, and appropriate the proceeds to her own use and benefit; and all deeds and conveyances of real estate, by her made, shall pass a title in fee to the purchaser; it being my will that she shall enjoy the same as though it were devised to her in fee. Should my mother die first, then and in that case, I devise all the remainder of my estate to Charles Lindley Downie.

"Item. After the death of my mother I devise all of the said estate to my half-brother, Charles Lindley Downie, and should he die before attaining the age of twenty-one years, then I will and devise that all of my said estate shall go to the following named persons, in equal portions, that is to say," etc. (Names not material and omitted.)

The testator's mother, Melissa E. Downie, mentioned in the last will and testament of Alanson G Stevens, deceased, took possession of the real estate in controversy under such will, and she never had at any time any right in or title to or power over such real estate except such as she took and had under such last will. The appellant, Charles Lindley Downie, the plaintiff in this suit, is the same person mentioned by that name in said last will and testament, and attained the age of twenty-one years in the lifetime of Melissa E. Downie, and before the commencement of this action. Melissa E. Downey died intestate before this suit was commenced; but, at the time of her death and at all times since, the appellee was and had been in the exclusive possession of the real estate described in appellant's complaint. After the death of Melissa E. Downie, and after the appellant, Charles Lindley Downie, had attained the age of twenty-one years, but before he commenced this suit, he demanded the possession of the real estate in controversy from the appellee, who refused to surrender such possession.

After the death of Alanson G. Stevens, and the probate and record of his last will and testament, to wit, on the 1st day of July, 1870, Melissa E. Downie, then in full life, executed acknowledged and delivered an instrument in writing, whereby she nominated, constituted and appointed Thomas Cottrell, of Marion county, her true and lawful attorney, authorizing and empowering him to sell and convey any and all real estate to which she had any title or in which she had any interest, and to execute conveyances and any and all other instruments in her name and behalf. This power of attorney was duly recorded on the day of its date in the recorder's office of Marion county. Afterwards, on the 18th day of November, 1871, Melissa E. Downie, by Thomas Cottrell, her attorney in fact, conveyed and warranted by her deed of that date unto the appellee, Charles Buennagel, the real estate in controversy in this suit for the sum of $ 665. This deed was duly recorded on November 21st, 1871, in the recorder's office of Marion county. The appellee paid for such real estate the full consideration and value of the fee simple thereof, and accepted his deed as conveying to and vesting in him the fee of such real estate. By virtue of his purchase and deed, immediate possession of such real estate was delivered to and taken by the appellee, claiming to be the owner in fee simple thereof, and in faith of such title he made lasting improvements thereon of the value of $ 3,000. Afterwards, on the 25th day of September, 1875, Melissa E. Downie, then living, in her...