Fricker v. Clearwater

• Decision Date: 26 April 1922
• Docket Number: No. 11306.,11306.
• Citation: 135 N.E. 187,78 Ind.App. 456
• Parties: FRICKER et al. v. CLEARWATER et al.
• Court: Indiana Appellate Court

78 Ind.App. 456

135 N.E. 187

FRICKER et al.

v.CLEARWATER et al.^*

No. 11306.

Appellate Court of Indiana, Division No. 2.

April 26, 1922.

Appeal from Superior Court, Marion County; Solon J. Carter, Judge.

Complaint to quiet title and for a partition by Harry S. Clearwater and another against Oren A. Fricker and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Bachelder & Bachelder, of Indianapolis, for appellants.

Clarence E. Weir and Charles W. Richards, both of Indianapolis, for appellees.

McMAHAN, J.

Complaint by Harry S. Clearwater, hereafter designated as appellee, to quiet title to an undivided one-half interest in certain real estate, and for partition. Appellee claimed the land by descent, while Oren Fricker, herein designated as appellant, claimed under a deed which he claims was executed by Martha Clearwater, through whom both parties claim title.

The court found the facts specially to be in substance as follows: Martha Clearwater, who became the owner of the real estate in controversy prior to March 16, 1917, died intestate November 13, 1917, and left as her sole and only heirs her husband, Hiram Clearwater, Ida Fricker, a daughter, and appellee, a son. Hiram Clearwater died before the beginning of this action, and left appellee and Mrs. Fricker as his only heirs. Mrs. Clearwater had complete possession and control over the real estate from the time she became the owner until her death. March 16, 1917, she signed a deed in which her husband joined, which purported to convey the real estate to appellant. Mrs. Clearwater, on the day when this deed was signed, placed it in the custody of A. L. Miers, and instructed him to hold such deed in his possession until he was ordered to deliver it. No other instructions or directions were ever given Mr. Miers by Mrs. Clearwater, and she never signed any other deed or instrument purportingto convey any part of said real estate. Mr. Miers took possession of this deed and kept it until November 7, 1917, when he, without any direction from Mrs. Clearwater, gave it to appellant, who at once placed it on record. The court found that appellant claims to own the whole of the real estate through said deed, but that appellee was the owner of an undivided one-half thereof by descent from his mother and father, and that the land was indivisible.

The court concluded, as a matter of law, that appellee was the owner (1) of a one-third as heir of his mother, and (2) of an undivided one-sixth as heir of his father, (3) that he was entitled to have his title quieted as against appellant, (4) that he was entitled to a decree of partition, and (5) that appellant take nothing on his cross-complaint.

Appellant excepted to the conclusions of law, and, after the decree, filed a motion for a new trial, specifying that the decision was not sustained by sufficient evidence, that it was contrary to law, and that the court erred in admitting and in excluding certain evidence.

The only questions presented for our consideration relate to the action of the court in overruling the motion for a new trial the specifications of which are that the decision of the court, (1) is not sustained by sufficient evidence, (2) is contrary to law, and (3) in admitting and in excluding certain evidence.

Whether the decision of the court is sustained by sufficient evidence depends upon whether there is any evidence to support the findings that Mrs. Clearwater never directed or instructed Mr. Miers to deliver the deed to appellant, that Mr. Miers was never instructed to deliver said deed, and that it was never delivered to appellant.

Appellant contends the evidence shows there was a delivery of the deed to appellant by the husband of Mrs. Clearwater, and that in the absence...