McAdams v. Bailey

• Decision Date: 18 December 1907
• Docket Number: 21,166
• Parties: McAdams v. Bailey et al
• Court: Indiana Supreme Court

82 N.E. 1057

169 Ind. 518

McAdams v. Bailey et al

No. 21,166

Supreme Court of Indiana

December 18, 1907

From Benton Circuit Court; Joseph M. Rabb, Judge.

Suit by Charles V. McAdams against Elizabeth I. Bailey and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under § 1394 Burns 1908, subd. 2 Acts 1901, p. 565, § 10.

Affirmed.

Charles V. McAdams, pro se.

Fraser & Isham, for appellees.

OPINION

Gillett, J.

Appellant was plaintiff below. His suit was to quiet title. The questions in the case arise upon a special finding, and, so far as now material, they relate to the ownership of a one-third interest in a tract of real estate owned by Elizabeth Weidenhammer in her lifetime. According to the findings, she inherited said share from her first husband James H. Lincoln. Zachariah T. Lincoln was a son by said marriage, and is still in life. Said Elizabeth, while so holding said interest, married Simon Weidenhammer, and died during the continuance of the latter coverture. Said Zachariah inherited, upon the death of his father, a two-ninths interest in said tract of land, and afterwards contracted to sell his two-ninths interest to his stepfather, said Simon. Subsequently, in the year 1871, the latter and his wife, together with said Zachariah and his wife, executed a warranty deed to Moses Fowler and Samuel Alexander, through whom appellees claim. The granting clause of the deed was of "all the interest by right of inheritance which said grantors acquired from said James H. Lincoln, deceased, in and to" a certain tract of land, which was particularly described, the description being of the tract in which said Elizabeth and said Zachariah had their respective interests as before stated. Following the granting clause, it was recited in said deed that "the interest hereby conveyed by said Zachariah T. Lincoln is the equal, undivided one-third part of two-thirds of the same, and any other interest which might accrue to said Zachariah T. Lincoln, after the death of said Elizabeth, his mother, in consequence of her second marriage with said Weidenhammer, and the interest of said Elizabeth hereby conveyed is the equal undivided one-third part of said land, and is the entire estate except two-thirds of two-thirds due the remaining heirs, being two, of said James H. Lincoln, deceased." Said Simon negotiated the sale evidenced by said deed. He had not purchased said Zachariah's expectancy in the one-third of his father's lands which came to his mother. Said Zachariah had nothing to do with the negotiation of the subsequent sale, except to execute the deed. He executed the same to carry out his contract of sale with said Weidenhammer, and for no other purpose. The grantees paid the reasonable value of the interests which the deed purported to convey. The purchase money was paid to said Simon, and no part of it was paid to said Zachariah. Said Simon retained of the purchase money the portion representing the two-ninths interest of said Zachariah, and gave to said Elizabeth the balance thereof. The suit was originally commenced by said Zachariah, but during its pendency he made a conveyance to appellant, who was thereupon substituted as plaintiff.

As the fee was in said Elizabeth to the one-third of the real estate which she inherited from her first husband, it does not admit of question that a mere quitclaim deed by her son, not purporting to convey any particular interest, would have been ineffectual to convey his possible future interest therein. A deed of such an interest to a stranger would have been invalid at the common law, as calculated to provoke maintenance and other contentions. Lampet's Case (1613), 10 Coke 46-48. Courts of equity, however, have from a very early period upheld specific assignments of mere possibilities, based on a valuable consideration, where the enforcement of the agreement would not contravene their own rules or public policy, the underlying theory being that where there is a duty to convey the agreement will be given force as an executory contract. 3 Leading Cas. in Eq. (3d Am. ed.), 307, 308, 343, 362; Smithurst v. Edmunds (1862), 14 N.J. Eq. 408, 416; Barick v. Edwards (1840), Hoffman's Ch. *382; Emerson v. European, etc., R. Co. (1877), 67 Me. 387, 24 Am. Rep. 39; In re Wilson's Estate (1845), 2 Pa. 325; East Lewisburg Lumber, etc., Co. v. Marsh (1879), 91 Pa. 96; Ruple v. Bindley (1879), 91 Pa. 296; Rodijkeit v. Andrews (1906), 74 Ohio St. 104, 77 N.E. 747, 5 L. R. A. (N. S.) 564; note to McCall v. Hampton (1895), 56 Am. St. 335, 354. In Mitchell v. Winslow (1843), 2 Story 630, Fed. Cas. No. 9,673, which involved the validity of a mortgage upon machinery, tools and stock in trade, to be thereafter acquired in connection with a going business, Story, J., said: "Upon the best consideration which I am able to give to the subject, I think it [the mortgage] is good and valid. Courts of equity do not, like courts of law, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed and in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and also of things which have no present actual or potential existence, but rest in mere possibility only. In respect to the latter, it is true, that the assignment can have no positive operation to transfer, in praesenti, property in things not in esse; but it operates by way of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse; and it may be enforced as such a contract in rem, in equity." Irrespective, however, of the jurisdiction of courts of equity, it has always been possible to convey subsequently-acquired interests by the operation of the principle of estoppel. 3 Washburn, Real Prop. (6th ed), § 1916; Rawle, Covenants for Title (4th ed.), 393; 18 Viner's Abridgment, title, Release, G 299; M'Crackin v. Wright (1817), 14 Johns. *193; Stover v. Eycleshimer (1865), 46 Barb. 84; Bank of Utica v. Mersereau (1848), 3 Barb. Ch. 528, 49 Am. Dec. 189; Pelletreau v. Jackson (1833), 11 Wend. *110; Trull v. Eastman (1841), 3 Met. (Mass.) 121, 37 Am. Dec. 126; Habig v. Dodge (1891), 127 Ind. 31, 25 N.E. 182; Griffis v. First Nat. Bank (1907), 168 Ind. 546, 81 N.E. 490; Smith v. Pendell (1848), 19 Conn. *107, 48 Am. Dec. 146. In the leading case of Doe v. Oliver (1829), 5 M. & R. 202, reported in 2 Smith's Leading Cas. (11th ed. by Chitty), 724, it is declared that the interest, when it accrues, feeds the estoppel. The fruit and effect of a warranty in a deed is that it concludes the warrantor, so that all present and future rights that he has or may have in the land, are thereby extinct. 1 Sheppard's Touchstone (1st Am. ed.), *182.

Although, as before indicated, an ordinary quitclaim deed will not estop the grantor from asserting an after-acquired interest, yet a distinct recital in a deed without covenants, showing that the parties proceeded on the theory that a particular interest was thereby conveyed, may be as effectual to create an estoppel as a warranty. Van Rensselaer v. Kearney (1850), 52 U.S. 297, 11 HOW 297, 13 L.Ed. 703; 1 Jones, Real Prop., § 991. Appellant, however, insists that there can be no estoppel where the truth appears in the instrument. This is, no doubt, a general principle as applied to ordinary recitals. We question the application of this doctrine to distinct undertakings for the transfer of after-acquired property. We place our ruling, however, not on the effect of the recitals, as such, but on the ground that an estoppel exists because of the covenant of warranty. Lord Coke observes that although estoppels are odious, yet warranties are favored in law, being part of a man's assurance. 2 Coke's Institutes (by Thomas), *272. It is a mistake to liken an estoppel by deed to an estoppel in pais. It is stated in a note to 4 Kent's Comm. (14th ed. by Gould), *261, that "technical estoppels by deed or matter of record sometimes conclude the party without any reference to the moral qualities of his conduct," citing Welland Canal Co. v. Hathaway (1832), 8 Wend. *480, 24 Am. Dec. 51; Dezell v. Odell (1842), 3 Hill 215, 38 Am. Dec. 628. In Trull v. Eastman, supra, it was held that a deed between brothers, made with the consent of their father, purporting to convey all of the interest of the grantor in and to the estate of the father, whether the same should fall to the grantor by will or descent, accompanied by a special covenant of nonclaim, operated to rebut or bar the grantor when he afterwards sought to recover his share of the real estate. In Habig v. Dodge, supra, the facts were that by warranty deed a man attempted to convey to his brother the former's contingent interest in lands which were held by his stepmother by virtue of her marital right in the lands of the grantor's deceased father, she being a childless second wife. Mitchell, J., speaking for the court, said: "It appears upon the face of the instrument that the grantor assumed to convey and warrant title to a reversionary interest equal to the undivided one-third of the real estate previously set off to the widow. It is evident that the parties dealt upon the footing that the grantor bargained and sold, and that the grantee acquired by the deed, a one-third interest in the land in dispute, subject to the estate, or supposed estate, of the widow. In equity and good conscience the grantor, and all those claiming through him, should now be estopped to assert the contrary." See, also, Clendening v. Wyatt (1895), 54 Kan. 523, 38 P. 792, 33 L. R. A. 278.

The question under consideration is discussed in Ayer v Philadelphia, etc., Brick Co. (1893), 159 Mass. 84, 34 N.E. 177,...