Haines v. Weirick

• Decision Date: 27 November 1900
• Citation: 155 Ind. 548,58 N.E. 712
• Parties: HAINES et al. v. WEIRICK.
• Court: Indiana Supreme Court

155 Ind. 548

58 N.E. 712

HAINES et al.

v.WEIRICK.

Supreme Court of Indiana.

Nov. 27, 1900.

Appeal from circuit court, Kosciusko county; H. S. Biggs, Judge.

Action by Robert Haines and others against William H. Weirick. From a judgment for defendant, plaintiffs appeal. Reversed.

Summy & Summy and S. J. North, for appellants. L. W. Royse and J. W. Cook, for appellee.

DOWLING, C. J.

This case was transferred to this court by the order of the appellate court. The suit is for the recovery of a part of the consideration for the conveyance of a tract of land, and is prosecuted by the heirs at law of the deceased payee against the grantee named in the deed. A demurrer to the complaint was sustained, and judgment followed. The error assigned calls in question the ruling on the demurrer. The facts stated in the complaint are these: December 2, 1885, Henry Weirick and his wife, Elizabeth, executed to the appellee, William H. Weirick, a deed of general warranty for 80 acres of land situated in Kosciusko county, Ind., reserving to the grantors an estate for the life of each in said lands. The consideration expressed in the deed was $1, and that the grantee should pay to Ora F. Haines, the grandson of the grantor, $500, without interest until it should become due when the said Ora F. should arrive at the age of 21 years; a lien to secure such payment being retained in the deed. The grantee accepted the deed, and caused it to be placed upon record. One of the grantors (Henry Weirick) died September 18, 1887, and the said Ora F. Haines died February 25, 1891, not having arrived at the age of 21 years. The latter left surviving him as his sole heirs at law his father, Robert Haines, and the other appellants herein, who were his half brothers and sisters. It is averred that all the debts of the said Ora F. have been paid, and that no administration on his estate is necessary; that the said Ora F., had he lived, would have become 21 years old August 16, 1897; that said sum of $500 is now due, and payable to the appellants, as the heirs of the said Ora F.; and that the appellee, although requested, refuses to pay the same. Prayer for judgment for the $500, with interest from August 16, 1897, and for the foreclosure of the lien reserved in the deed. It is contended on behalf of the appellee that the reservation of the life estate “with the absolute control of the said real estate, the same as if this conveyance had not been made, for and during the period of the natural life of the grantors, and of each of them,” is inconsistent with the grant contained in the instrument, and operates to defeat it. We think otherwise. The deed conveys a fee to the grantee, subject to a life estate in the grantors. During the existence of the life estate the grantors could, consistently with the grant of a remainder in fee, continue to exercise absolute control over the land to the same extent as if the deed had not been made. Such control, so reserved in the deed, related to the use, enjoyment, and management of the land, and cannot be understood to authorize the life tenants to impair or destroy the title of the grantee and remainder-man by anotherconveyance. Besides, if it were true that the reservation contained in the deed was inconsistent with the estate thereby granted, such reservation would probably be void. 5 Am. & Eng. Enc. Law (1st Ed.) 456; Shep. Touch. 79.

It is next argued that the $500 was payable to Ora F. on the condition that he should live until he became 21 years old, and that, the contingency on which it was to become due and payable having failed by his death, the grantee is not liable to pay it at all. Cravens v. Mills Co., 120 Ind. 6, 21 N. E. 981;Wagon Works v. Coombs, 124 Ind. 62, 24 N. E. 589;Henry v. Thomas, 118 Ind. 23, 20 N. E. 519; 2 Rand. Com. Paper, § 113, p. 153; Marsh v. Wheeler, 2 Edw. 155; Harris v. Fry, 7 Paige, 420; De Lavergne v. Dean, 45 How. Prac. 206;Knight v. Pottgeiser (Ill. Sup.) 52 N. E. 934;Scofield v. Olcott, 120 Ill. 362, 11 N. E. 351;Carper v. Crowl, 149 Ill. 46, 36 N. E. 1040; and Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310,-are cited in support of this view. The case is governed by the rules stated in Goss v. Nelson, 1 Burrows, 226. In that case the question depended...