Kitts v. Willson
| Decision Date | 08 December 1891 |
| Docket Number | 14,991 |
| Citation | 29 N.E. 401,130 Ind. 492 |
| Parties | Kitts et al. v. Willson et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 26, 1892.
From the Decatur Circuit Court.
Affirmed upon the assignment of errors, and reversed upon the cross-assignment of errors.
E. P Ferris, J. S. Ferris, W. A. Moore and W. W. Spencer, for appellants.
W. G Holland, C. H. Wilson, F. E. Gavin and J. D. Miller, for appellees.
McBride, J. Miller, J. took no part in the consideration or decision of this cause.
This was a suit by the appellant Sarah Kitts for the partition of certain land in Ripley county, of which she claims to be owner of the undivided one-half, one-third of which she claims as the widow of one David H. Kitts, and one-sixth as heir of two of her deceased children. The complaint also seeks to have a warranty deed of the land, executed by her and her said husband, declared a mortgage and to have her title quieted.
There was a cross-complaint by the appellees William D. and Thomas E. Wilson, in which they claim to be the owners in fee simple of all of said land, and ask that their title be quieted.
The case has had a somewhat remarkable history. It has been six times tried, and is in this court for the fourth time. See Cravens v. Kitts, 64 Ind. 581; Kitts v. Willson, 89 Ind. 95; Kitts v. Willson, 106 Ind. 147, 5 N.E. 400. A special verdict returned by the jury last trying it is not the least remarkable of its features. It was apparently constructed by the jury according to their own ideas, regardless of form or precedent. It consists of thirty-two separately numbered propositions, each signed by the foreman, in which findings of fact, of evidence, and of mingled law and fact, are curiously mingled. Such as it is, however, all of the parties have elected to abide by it, and the only questions presented in this appeal grow out of the application of the law to the facts thus found. To copy the special verdict would unnecessarily encumber the record with a mass of verbiage. It is difficult to fairly abstract, but, in so far as the facts found are material to the controversy, they are substantially as follows:
January 13th, 1864, David H. Kitts, husband of the appellant Sarah Kitts was the owner in fee simple of the land in controversy, and on that day they joined in conveying it to one James H. Cravens, by what on its face purported to be a warranty deed. The consideration named in the deed is $ 1,200, less a school fund mortgage for $ 139. Kitts at the time owed Cravens $ 100, and was about entering the army. He was also a surety on the official bond of one Vandever, who was sheriff of Ripley county, and who, the jury find, had become a defaulter in a large sum for moneys collected by him as such sheriff, and not accounted for, and had absconded. The jury find that, at the time, Kitts applied to Cravens to know what he should do in the matter of his liability on Vandever's bond, and that Cravens suggested to him the conveyance of his land to some person in whom he had confidence; that Kitts suggested Cravens, and thereupon, with his wife, executed the deed. Of the deed to Cravens the jury make the following finding: "That said writing was executed and delivered to said Cravens for the fraudulent purpose of cheating, hindering and delaying the creditors of said Kitts in collection of their claims against him."
The jury make the following additional finding relative to the knowledge which the appellant had of the fraudulent character and purpose of the conveyance: "And that the plaintiff had no knowledge of the liabilities of David H. Kitts on the Vandever bond, only what was said by Cravens, that it was to get shut of paying a liability of $ 3,000 growing out of Vandever's defalcation and a Holten execution."
The jury make a further finding relative to the conveyance as follows: "In consideration of which there was a parol agreement made between said Kitts and Cravens; that was, that Cravens was to pay off said mortgage, keep the taxes paid on the said Kitts land, and, further, when David H. Kitts came home out of the army, and paid to said Cravens said $ 100 that Kitts owed said Cravens, and paid back the school fund mortgage, together with the taxes, then Cravens was to deed back said land to said David H. Kitts."
At the time of the conveyance there were on the land a log house, a frame stable, and some other improvements, and Kitts, with his family, resided on it. Kitts enlisted in January, 1864, and returned from the army July 4th, 1865. During his absence the land was occupied by the appellant and her children. It was then worth $ 2,850.
After Kitts returned from the army he, with his family, continued to reside on the land until October 23d, 1868, during which time he farmed and improved the land to some extent. He also cut and sold 100 cords of wood from it, and cut and hauled saw-logs to a saw-mill sufficient to make 12,000 to 15,000 feet of lumber, a portion of which was for a house and barn on the land. He also sold other timber, for which he received the pay. The jury make findings of some length relative to the conveyance by Cravens to Kitts of some lands in Missouri and of Kitts' removal there with his family, and of his return in October, 1871.
We omit these because not material as the controversy is presented to us. After Kitts returned from Missouri in October, 1871, a tenant who was occupying the land under Cravens vacated the premises, and Kitts again entered into possession, and thereafter resided on the land until his death, which occurred October 14th, 1873. The jury find that, as between Cravens and Kitts, they regarded the conveyance of January 13th, 1864, as a mortgage.
November 6th, 1873, the appellant filed with the clerk of the Ripley Circuit Court her petition as widow of David H. Kitts, deceased, to have the property belonging to his estate set off to her, as not being worth over $ 500. This resulted in the filing of an inventory and appraisement amounting to $ 482.90, all personal property. No real estate was inventoried or appraised. The appraisement was approved, and by order of court the title to the property was vested in the widow.
December 31st, 1873, Cravens and wife conveyed the land in controversy to the appellee William D. Wilson by warranty deed, for the expressed consideration of $ 2,500, and on the 13th day of January, 1874, William D. Wilson and wife conveyed to the appellee Thomas E. Wilson an undivided interest in the land by quitclaim deed.
The jury do not find the extent of the interest conveyed by the latter deed, but find that the consideration was $ 900.
The Wilsons are in possession, claiming title to the land through said conveyance from Cravens.
The twenty-seventh finding is as follows:
The jury then find that the appellant is the owner in fee of the undivided one-half in value of the property, and that the remaining heirs of Kitts are the owners in fee of the residue, specifying their respective shares.
They also make the following finding: "We find that the Wilsons purchased this land with full notice, as set forth in the complaint."
The foregoing abstract not only states every material fact found by the jury necessary to a determination of the controversy, but, in addition, some facts discussed and apparently relied on by counsel, but which we deem wholly immaterial and foreign.
On the 17th day of May, 1888, while the trial before the last was in progress, James B. Kitts, one of the appellants, filed a written disclaimer, and on the next day the court, on motion of Wilson and Wilson, rendered judgment in their favor against him on the cross-complaint, quieting their title as against him, and for costs.
Before considering the other questions presented by the record, we will say, of the so-called special finding numbered 27, that it is not a finding of a fact proper to be incorporated into a special verdict.
It can be regarded as no more than the conclusion reached by the jury as to the legal effect of the facts previously found by them relative to the title of Wilson and Wilson. If it can be regarded as a finding of fact at all, it is no more than a general finding.
Whether the parties to the litigation had title to the property in controversy is a mingled question of law and of fact, and must be determined by the court applying the law to the facts found. The question of practice involved does not differ in principle from that involved in the case of Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186. See, also, Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813.
The same may be said of the findings that the appellant is the owner in fee of the undivided one-half of the property in controversy, and that the remaining heirs of David H. Kitts are the owners in fee of the residue.
The findings are unauthorized, and must be disregarded.
The position of the appellant is, that the jury having found that the conveyance by Kitts and wife to Cravens was regarded by them as a mortgage, the title to the land remained in Kitts subject to the mortgage, and at his death descended to the appellant as his widow, and to his children; that Wilson and Wilson having taken title with notice of the facts which gave to the deed its character of a mortgage, they acquired no greater or better title than their grantor Cravens; that the title of Kitts' heirs can only be divested through a...
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