Giffen v. Taylor

• Decision Date: 16 May 1894
• Docket Number: 16,708
• Parties: Giffen et al. v. Taylor
• Court: Indiana Supreme Court

37 N.E. 392

139 Ind. 573

Giffen et al. v. Taylor

No. 16,708

Supreme Court of Indiana

May 16, 1894

Petition for a Rehearing Overruled Dec. 13, 1894.

From the Marshall Circuit Court.

The judgment is affirmed.

F. E Osborn and W. B. Biddle, for appellants.

J. D McLaren, for appellee.

OPINION

Howard, C. J.

This was an action brought by appellee against appellants, to set aside a deed and to quiet title to real estate, and for damages.

There was a finding of facts by the court, followed by conclusions of law and a judgment in favor of appellee.

The first and second assignments of error, calling in question the sufficiency of the complaint, are presented, as counsel say in their brief, "only out of caution, believing the whole merit of the case can be better raised on the third assignment of error"; and they remark further: "We regard the merits of the case as more readily presentable under the third error assigned,--that the court erred in its conclusions of law upon the special findings."

We agree with the view here taken by counsel, and will only say of the complaint that we find it sufficient.

The facts found specially by the court are, substantially, as follows:

That on the 25th day of April, 1890, the appellee was the owner in fee-simple of the lands described in the complaint, and which are sought to be recovered; that she was a married woman of the age of seventy-eight years, and her husband, John Taylor was then of the age of eighty-two years, both in moderately good health and of sound mind for persons of their age. The appellee could not write or read writing; but her husband was well-informed in regard to ordinary business transactions, could read and write, and could understand deeds and other instruments relating to the transfer of real estate; that the appellant, Abner Giffen, is the grandson of the appellee and her said husband, and was then twenty-nine years old, the remaining appellant, Ellen, being his wife. Before and at said date the appellee had a great affection for Abner, which was reciprocated by him. He had never had any business relations with her, and had never advised her in relation to her property.

In April, 1890, appellee resided with her husband in Bourbon, Marshall county, while the appellant, Abner, was then, and still is, engaged in selling musical instruments and doing a general trading business in that line, traveling over LaPorte, Starke and Marshall counties; and was, and still is, an active, energetic business man; and the appellee had implicit confidence in his honesty and integrity, which was known to Abner, and his demeanor towards her had been of such a character as to justify her in that confidence. She believed him to be of good business tact and capacity. They had met only occasionally for a period of eight years, and for the two years prior to April, 1890, they had not met or communicated with each other.

In April, 1890, the sheriff of Starke county had and held in his hands certain fee bills which he had levied on appellee's said lands, and advertised the same for sale.

On April 25, 1890, appellee went to the house of her son, one Samuel Taylor, in Hamlet, Starke county, in and near which town said lands are situate, to learn the amount and nature of the claims against her land; and while she was at the house of her said son, the appellant Abner met her there, and, after learning of her trouble about her property, proposed to her that if she would deed the property to him, he would take care of it, see to the liens and taxes and sell it for her and account to her for all the proceeds, charging her for just what his services were worth, and at any time she should want the property back he would convey to her all that remained unsold.

On her agreeing to this proposition they went together to Knox, the county seat, and there learned that the only liens against the land were said fee bills, amounting to about $ 140. He afterwards informed appellee that he had paid off the fee bills, whereupon she and her husband paid him the amount he had thus expended, and took his receipt. Abner then prepared a deed to himself for all the lands, the nominal consideration being two thousand dollars, but there being no consideration actually paid, which deed appellee and her husband duly executed, all in accordance with the agreement to sell, account for proceeds, and reconvey to her any land unsold whenever she should desire, as hereinbefore set out. No trust was expressed in the deed.

This deed conveyed to said appellant all the property then owned by appellee. Appellee then had, and still has, numerous children and grandchildren. She, with her husband, had before this time, made a gift of considerable value to said appellant's mother. Some of appellee's descendants were then, and still are, poor people. Appellee did not intend to make a gift of the land conveyed by this deed, but relied on the promise and agreement of said appellant as aforesaid. Said appellant did not, during the pendency of the...