Emmons v. Harding

• Decision Date: 17 February 1904
• Citation: 162 Ind. 154,70 N.E. 142
• Parties: EMMONS v. HARDING et al.
• Court: Indiana Supreme Court

162 Ind. 154

70 N.E. 142

EMMONS

v.HARDING et al.

Supreme Court of Indiana.

Feb. 17, 1904.

Appeal from Circuit Court, Kosciusko County; J. D. Ferrall, Judge.

Action by Ellen Emmons against Oscar A. Harding and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under Burns' Rev. St. 1901, § 1337u. Reversed.

Summy & Lehman and Wood & Bowser, for appellant. John D. Widaman and Royse & Shane, for appellees.

GILLETT, C. J.

This action was brought by appellant against appellees to quiet title to certain real estate. There was a trial by jury, and on the conclusion of the evidence the court directed a verdict in favor of appellees. Over a motion for a new trial, judgment was rendered on the verdict.

It is objected by counsel for appellees that the assignment of errors is defective, in that the name of the court to which the appeal was taken is not shown. Appellant, presumably by oral direction, caused the appeal to be docketed in the Appellate Court, and an order of submission was afterwards duly entered. That court alone has original appellate jurisdiction over cases of the class to which this belongs. If the case had been filed in this court, it would have been our duty to transfer it. Section 1362, Burns' Rev. St. 1901. The procedure of appellant in the particular stated was irregular, but the Appellate Court acquired jurisdiction by the steps taken, and, as the irregularity is not serious, we regard it as our duty to consider the appeal on its merits.

It remains to determine whether there was sufficient evidence to entitle appellant to go to the jury. The question was as to the delivery and acceptance of a deed. The real estate in question belonged to one Erastus H. Emmons, and was part of an 80-acre tract of land. In the spring of 1900 Emmons signed and acknowledged 11 deeds, describing in the aggregate said tract of land. The deeds were in favor of his 11 children, respectively, except that as to the portion intended for the benefit of his son Henry the deed was made in favor of the latter's wife, the appellant here. The land covered by said deed is the property in suit. It consists of about 10 acres, on which is a house and a barn. In August, 1900, Emmons sent for a friend and neighbor, one Blue, and handed him said deeds, and also a writing, which contained directions concerning the disposition of said instruments. Emmons was at the time an old man, in failing health. He had resided with appellant and her husband upon said 80 acres of land for many years. We have only secondary, and somewhat fragmentary, evidence as to the writing which accompanied the deeds. It is in evidence that it contained a direction to Blue to hold the deeds until Emmons' death, and at “his death to deliver them to each one of the heirs.” Said writing contained some further provisions to the effect that the crops were to be sold, and, if necessary, timber was to be sold (whether the timber was upon the tract embraced in the deed in favor of appellant does not appear), to meet the expense of Emmons' support and to pay the cost of his burial. A number of oral statements were made to Blue by Emmons at the time of the delivery of said papers. Thus, when the deed to appellant was turned over to Blue, Emmons said, “This is Henry's,” and, upon Blue stating that it was made to Ellen (appellant), Emmons answered, “Yes, I made it to her.” He then explained that he had done so because Henry was in debt, and he added that he thought it best to deed the land to her, so that she and Henry could have a home. In the course of said conversation Emmons further said that he did not owe any man a dollar; that he “did owe Henry some, but made that all right with him in deeding the land to pay him.” He further said, with reference to his having lived with Henry and his wife, that “he had been sick, and a good deal of bother to them,” and that “he thought it was right to give Henry that much.” The bill of exceptions also shows the following in connection with the testimony of the witness Blue: “Q. What did he [Emmons, Sr.] say about making this deed to Ellen Emmons? A. He told me that Henry Emmons was in debt some, and for them to have a home he made it to - (The defendant objects.) The Court. What did he say about executing this deed to Mrs. Emmons-whether he did or not? A. Yes, sir; he did.” At the time said papers were turned over to Blue, Emmons had and retained in his possession a box, which had a lock and key, wherein it was his habit to keep his personal papers. A few days after the above-mentioned conversation, one Smith, who was acting for appellant and her husband, stated to the elder Emmons that Henry and his wife requested that he “let the deed stand as it was, and they would give no further trouble at all from any book account or anything of that kind.” Emmons answered that he would allow the deed to remain if there would be no further account, and if said Smith would be a witness to that fact; an assurance which the latter thereupon gave. A little later Emmons called on Blue, and stated that he had “changed things,” or “changed his mind,” and he demanded and received said deeds and the paper which had been delivered with them. On August 30, 1900, Emmons, Sr., and appellee Oscar concluded an oral negotiation for the sale to the latter of said 80 acres. He paid $1 down, and on the next day he received a deed, and made an additional payment. Said appellee admitted upon the stand that he had heard of the making of said former deeds, and that said Blue held them, and said witness further admitted that he destroyed said deeds, at the request of said Emmons, at the time he concluded his negotiations for the purchase of said land. Emmons died in April, 1901, before this suit was commenced. So far as described in the evidence, the deed in favor of appellant was unconditional. Appellant at least had nothing to surrender to avail herself of the deed, if it was delivered for her use and benefit. If it can be said that it was delivered with an express agreement between the father and Henry that the latter's account was to be canceled, there is room for the inference, from the statement of the elder Emmons, that Henry had agreed to it, so that nothing remained to surrender. The evidence also tends to show a subsequent acceptance by appellant, and a waiver of all claim to an account upon the part of Henry.

It is insisted by counsel for appellees that as the grantor took the deed from the hands of the person to whom it was intrusted, and executed a deed of the land subsequently, the courts should not treat the first deed as a conveyance of the land. A delivery of a deed to a third person, to be by the latter delivered upon the grantor's death, would appear at first thought to be open to the objection that there was lacking that meeting of minds which is essential to the validity of contracts. Nevertheless it is hornbook law that a subsequent acceptance of the instrument or a ratification of the transaction may, by the operation of the fiction of relation, validate the deed. It is to be observed that the instrument on its face purports to run in favor of the grantee, thus bringing him, in a sense, into privity with the grantor. Gibson v. Chouteau, 13 Wall. 92, 20 L. E. 534. It is required that the delivery to the third person be of such a character that all dominion over the deed upon the part of the grantor should terminate. The transaction is to be distinguished from an escrow. The instrument has been lodged with the third person to await the lapse of time, and not the performance of any condition, and there is nothing to prevent it from becoming the grantor's deed presently. Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154. In fact, the authorities proceed on the theory that a deed so delivered is for some purposes a present conveyance. Osborne v. Eslinger, 155 Ind. 351, 58 N. E. 439, 80 Am. St. Rep. 240, and cases there cited. This has been put on two grounds: (1) That the act of the third person in receiving the deed on behalf of the grantee is not void; and (2) that it is presumed that a person will accept a deed which imposes no burden on him. As to the first ground, reference may be made to the note to the case of Armory v. Delamire, in Smith's Leading Cases. In that note the annotators say: “A subsequent ratification of an act done in the name of the party who ratifies is tantamount to a prior command; nay, it has relation back to the time of the act done, and is in point of law, and may be described in pleading as, a command. So that where a person, if present at the time, could lawfully command any act to be done, any other person, though either wholly without authority, or exceeding the limits of his authority, would be justified in doing that act, provided he did it in the name, or as one acting by the authority, of the person entitled (whether to his advantage or not), and obtained his subsequent ratification.” 1 Smith's Lead. Cases (11th Eng. Ed.) 361. This, if we may omit a few exceptions not necessary to note here, is a correct statement of the law. See 2 Bouvier's Inst. § 1316 et seq.

As to the second ground above stated-that of a presumed acceptance-it was once held that a disclaimer by matter of record was necessary to avoid the transaction, but it was afterwards adjudged otherwise. Townson v. Ticknell, 3 Barn. & Ald. 31. As stated by Justice Ventris in Thomson v. Leach, 2 Ventris, 98, a man “cannot have an estate put into him in spite of his teeth.” But the presumption that a persons will accept a pure, unqualified gift is so strong that the courts have quite generally manifested a disposition to act upon such presumption in the interim as a working rule for the operation of conveyances. See Lessee of Mitchell v. Ryan, 3 Ohio St. 377; 4 Kent, Com. p. *455, note.

There seems to be but one further question remaining in this connection, and that grows out of the fact...