Leach v. Rains

• Decision Date: 16 December 1897
• Docket Number: 18,255
• Parties: Leach v. Rains et al
• Court: Indiana Supreme Court

48 N.E. 858

149 Ind. 152

Leach v. Rains et al

No. 18,255

Supreme Court of Indiana

December 16, 1897

From the Howard Circuit Court.

Affirmed.

C. N Pollard, B. F. Harness and W. R. Voorhis, for appellant.

J. C Herron, F. N. Stratton, M. Bell and W. C. Purdum, for appellees.

OPINION

Monks, J.

Appellees brought this action against appellant to recover possession of and to quiet their title to the real estate described in the complaint. Appellant's demurrer to the amended complaint was overruled. Appellant filed a cross-complaint in two paragraphs, and appellees' demurrer to same was sustained. Upon leave granted, appellant filed an amended second paragraph of cross-complaint, to which appellees' demurrer for want of facts was sustained. Appellant refusing to plead further, judgment was rendered in favor of appellees. The rulings of the court on the demurrers are assigned as errors.

It appears from the amended complaint, that in 1886, appellant and one Isabelle Lacy were husband and wife, it being the second marriage of each; that said Isabelle was the owner of eighty acres of land in Howard county, Indiana, and that each being of an age when no children would likely be born to them, and said Isabelle having no children and no father or mother or brother or sister living, and having raised appellee, Della Rains, they were desirous of making a marriage settlement of the respective property rights of each in case of the death of either, and for the purpose of carrying into effect such settlement appellant and Isabelle Leach, his wife, on the 11th day of August, 1886, executed a deed conveying said eighty acres of real estate to a trustee. It was set forth in said deed that the same was made for the express purpose of having the grantee convey the east half of said real estate to appellant, and the west half to Isabelle Leach, his wife, "to the intent that, when said conveyances are made, each shall accept the same in full satisfaction and discharge of any interest either has in the tract conveyed to the other by virtue of the marital relations existing between them, and it is agreed and understood that in consideration of the making of said conveyances each of the grantors hereto does release any and all interest in the tract so conveyed to the other which now or might hereafter exist on account of the marital relations of the two." That, in accordance with said trust, the trustee, on the 11th day of August, 1886, executed a warranty deed conveying the east half of said eighty acres to appellant. It was recited in said deed that appellant, the grantee, should receive and accept said real estate "in lieu of any interest he has or may have in the real estate this day conveyed to Isabelle Leach, his wife, either as her heir, or by virtue of the marital relations existing between them, under the statutes of Indiana, and the said Lewis Leach does hereby receive and accept this conveyance in lieu of and in full satisfaction of any and all claims on or interest in the real estate this day so conveyed to Isabelle Leach, his wife, that he has or may have as her heir, or by virtue of their being husband and wife: provided that she accept the tract so conveyed to her in lieu of her interest as his wife in the tract herein conveyed to him;" that appellant accepted said deed on said terms, and took and held possession of said real estate from the date of said deed, and has received the rents and profits thereof continuously until the commencement of this action. On the same day, August 11, 1886, said trustee, in accordance with said trust executed a warranty deed, conveying the west half of said eighty acres to Isabelle Leach. It was recited in said deed that "said Isabelle Leach shall receive and accept said conveyance in lieu of any interest she has or may have by virtue of her being the wife of Lewis Leach [appellant] in the real estate this day conveyed to him, and she does receive and accept the same in lieu of her interest in the same by virtue of her being the wife of said Lewis Leach [appellant]." Said Isabelle Leach accepted said conveyance and took and held possession of said real estate conveyed to her until when she died, intestate, the owner of said forty acres, leaving surviving her, appellant, her husband, and nephews and nieces, but no children or their descendants. It is clear, under the facts stated in the amended complaint, that appellant would, unless prevented by the deeds set forth, take the forty acres in controversy, under section 2651, Burns' R. S. 1894 (2490, R. S. 1881), which provides that "if a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the survivor."

Appellant insists that "his right of heirship to the land in controversy is not barred by the deed he and his wife executed, conveying the eighty acres to the trustee." It would seem clear, however, that the language that "each of the grantors does release any and all interest in the tract so conveyed to the other, which is now or might hereafter exist on account of the marital relations of the two," was comprehensive enough to include the right to inherit as heir under the provisions of section 2651, Burns' R. S. 1894 (2490, R. S. 1881). Heirship, under said section, depends upon the marital relations, and if that relation did not exist at the time of the death, the survivor could not inherit as heir or otherwise. Heirship of the survivor exists, therefore, on account of the marital relation of the two at the time of the death of the other. The language of the deed made by appellant and wife to their trustee therefore was comprehensive enough to, and did, authorize the trustee to insert the release contained in the deed to appellant of any interest he might have in the forty acres in controversy as heir of his wife or by virtue of the marital relation existing between them. But we are not required to depend alone on the language of the deed to the trustee, for as the three deeds were executed at the same time and relate to the same subject-matter and were part of the same transaction, they must, therefore, be construed together. Burns v. Singer Mfg. Co., 87 Ind. 541, 547, and cases cited; Ireland v. Montgomery, 34 Ind. 174; Schmueckle v. Waters, 125 Ind. 265, 267, 25 N.E. 281; Durland v. Pitcairn, 51 Ind. 426, 444; Cunningham v. Gwinn, 4 Blackf. 341; Sutton v. Beckwith, 68 Mich. 303, 36 N.W. 79, 13 Am. St. 344, and note p. 351.

It is expressly stated in the deed to appellant, that he accepts the same in lieu of, and in full satisfaction of, any claims or interest in the real estate conveyed to his wife, that he has or may have as her heir, or by virtue of the marital relation existing between them; and by his acceptance of said deed and taking possession of said real estate he became and is bound by these conditions in like manner as if he had signed an agreement containing the same. Street v. Chapman, 29 Ind. 142; Smith v. Hollett, 34 Ind. 519; Fairbanks v. Meyers, 98 Ind. 92, 97, 98; Chicago, etc., R. W. Co. v. Derkes, 103 Ind. 520, 523, 524, 3 N.E. 239, and cases cited; Thiebaud, Tr., v. Union Furniture Co., 143 Ind. 340, 344, 42 N.E. 741.

Construing said deeds together, it is evident that appellant not only released his rights in said forty acres, under section 2642, Burns' R. S. 1894 (2485, R. S. 1881), but also his rights under section 2651, Burns' R. S. 1894 (2490, R. S. 1881).

In Glass v. Davis, 118 Ind. 593, 21 N.E. 319, cited by appellant, the real estate was conveyed to the wife during coverture as her jointure in the lands of her husband. The court held that the one-third in fee, which the wife takes in the lands of her deceased husband under sections 2640, 2652, Burns' R. S. 1894 (2483, 2491, R. S. 1881,) was intended to take the place of the dower to which she was entitled before the passage of the statute, and that the jointure had the same effect on the interest the wife takes under our statute that it had on her dower interest; and that, as jointure merely barred a wife's right to dower, it only barred her right under the section of the statute giving her said one-third, and not her right as heir under section 2651 (2490), supra. In this case the conveyance was in lieu of appellant's interest in said forty acres as heir of his wife or by virtue of the marital relation between them, and not in lieu of the one-third, as in Glass v. Davis, supra. That case is, therefore, not in point here.

It is next contended by appellant that no title passed by the deed of appellant and wife to the trustee, and that his wife died the owner of the eighty acres of land, for the reason that he could not legally consent to his wife's conveyance of her real estate to a trustee upon the express condition that one-half thereof should be reconveyed to him, and that she should be barred of all interest therein as wife and heir; that the wife would be the loser in such a transaction. A married woman may, through the intervention of a trustee, convey her separate real estate to her husband as a gift, or for a valuable consideration, subject to be avoided for fraud or undue influence on his part. Johnson v. Rockwell, 12 Ind. 76, 79, 80; Hetrick v. Hetrick, 13 Ind. 44, 45; Note to Turner v. Shaw, 9 Am. St. 323, 326; Boyd v. De La Montagnie, 73 N.Y. 498, 502, 29 Am. Rep. 197; Darlington's Appeal, 86 Pa. 512, 519, 520, 27 Am. Rep. 726; Scarborough v. Watkins, 9 Mon. (Ky.) 540, 547, 548, 50 Am. Dec. 528, 48 Ky. 540; Jenne v. Marble, 37 Mich. 319, 322; 14 Am. & Eng. Ency. of Law, 559; Reeve's Dom. Rel., p. 98; Schouler's Dom. Rel., section 190.

The deed of appellant and wife was executed in all respects as required by the laws of this State, and was sufficient to...