McClure v. Raben

• Decision Date: 20 September 1890
• Docket Number: 14,321
• Citation: 25 N.E. 179,125 Ind. 139
• Parties: McClure v. Raben
• Court: Indiana Supreme Court

25 N.E. 179

125 Ind. 139

McClure v. Raben

No. 14,321

Supreme Court of Indiana

September 20, 1890

From the Posey Circuit Court.

Judgment reversed, at costs of appellee, with instructions to sustain the demurrer to the cross-complaint, and for further proceedings in accordance with this opinion.

W Loudon and F. P. Leonard, for appellant.

G. V Menzies, for appellee.

Olds J. Elliott, J.

OPINION

Olds, J.

Thomas McClure, Jane W. McClure, John Wilson, and others, filed their petition in the Posey Circuit Court against George Danley, Mary E. Pool, Joseph McClure, the appellant, and Antony Raben, the appellee, and others, praying for the partition of certain lands situate in said Posey county, Indiana, and for the quieting of the title thereto, as against certain parties.

In said proceedings the appellee, Antony Raben, filed his amended cross-complaint against the appellant, Joseph McClure, which cross-complaint is as follows:

"Antony Raben, one of the defendants in the above entitled cause, for amended cross-complaint against his co-defendant, Joseph McClure, says that heretofore, to wit, on the 30th day of March, 1853, Leah McClure, the mother of said Joseph McClure, was a widow, and was the owner in fee simple, and in possession, of all the lands described in the complaint in this action, and in the deed hereinafter mentioned.

"That on the date aforesaid said Leah McClure was a person of unsound mind, incapable of managing her own estate, and that she so continued without a lucid interval until her death, on the 10th day of March, 1886; that she died in said State and county intestate, leaving, as her only heirs at law, the said Joseph McClure, and six other persons, whose names are unknown; that on the date first mentioned, the 30th day of March, 1853, the said Joseph McClure, at that time over twenty-one years of age, as an expectant heir of his mother, the said Leah McClure, by his deed of bargain and sale, a copy of which, marked 'A,' is filed herewith as a part of this amended cross-complaint, sold and assigned to one Samuel D. McReynolds his expectant interest in the lands therein described, as heir at law of said Leah McClure; that the said Joseph McClure received from the said McReynolds the full value of his said expectant interest, and the contract by which the said Joseph McClure sold and assigned his said expectant interest was bona fide and without any fraud practised upon the said Leah McClure or the said Joseph McClure; that afterwards, to wit, on the 15th day of June, 1863, the said McReynolds sold and conveyed to said Raben the interest in said lands sold and assigned to him by the said Joseph McClure; that said Joseph McClure claims to be the owner in fee simple of one undivided full seventh part in value of said lands as one of the heirs at law of said Leah McClure, and adversely to the interest of said Raben, thereby casting a cloud upon his, the said Raben's, title to one-seventh part in value of said lands. Wherefore said Raben prays for judgment against Joseph McClure to quiet the title of said Raben to an undivided one-seventh in value of said lands, and inhibiting said Joseph McClure, or those claiming under him, from setting up any right or title to and into any of said lands as an heir at law of said Leah McClure, adverse to the title of said Raben, and for all proper relief."

"Exhibit A," deed: "This indenture witnesseth that Joseph McClure, of Posey county, Indiana, in consideration of three hundred dollars to him paid by Samuel D. McReynolds, of the same place, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey to the said McReynolds, his heirs and assigns forever, the following real estate in Posey county and State of Indiana, and described as follows, to wit."

Here follows a description of the land, being the same described in the petition: "Or all the estate, right and title that the said McClure may have in and to the same at the death of his mother, the widow of John McClure, deceased, as one of her heirs at law, together with all the privileges and appurtenances to the same belonging, to have and to hold the same to the said Samuel D. McReynolds, his heirs and assigns forever. In testimony whereof the said Joseph McClure has hereunto set his hand and seal this 30th day of March, 1853.

Joseph McClure."

Said deed was duly acknowledged and recorded.

To this amended cross-complaint the appellant filed a general demurrer.

The court overruled the demurrer to said amended cross-complaint, and appellant reserved exceptions, and failing to answer the amended cross-complaint, judgment was pronounced against him in accordance with the prayer of the same.

The only error assigned is the overruling of the appellant's demurrer to the amended cross-complaint of the appellee, Antony Raben.

The question presented is as to whether or not the sale and conveyance by Joseph McClure of his expectant interest in the real estate owned in fee simple by his mother, and of which she was in possession at the time of the sale, is valid either in law or in equity so as to pass the title thereto to his grantee on Joseph's survival of his mother.

The broad question is presented as to whether a child, during the lifetime of his father or mother, can make a valid sale and transfer of an expectant interest in the real estate at the time owned and in the possession of the parent, as in this case. It is conceded that the deed in this case contains no covenants of warranty by which an after-acquired title would pass to the grantee, but it is contended on behalf of the appellee that the cross-complaint shows the sale to have been made in good faith and for a valuable consideration, and without fraud, and that it is valid in equity, and that the grantee is entitled to have it specifically enforced on the estate vesting in the grantor. In this contention of the appellee we can not concur.

It is a general rule that a sale, in the absence of property conveys no title. There must be something to sell or else there can be no sale. It is conceded that the rule which applies in case of a deed of general warranty, whereby the heir would be barred from setting up a subsequently acquired title, does not apply, and applying the rule applicable to quitclaim deeds, and treating the conveyance in this case as such, the heir is not estopped from setting up the subsequently acquired title. In the case of Bryan v. Uland, 101 Ind. 477, it is said by the court that "A quitclaim deed is effectual to pass the estate which the grantor has at the time it is made, and no more; it does not estop him from asserting an after-acquired interest," and this doctrine is so well settled that we need not cite other authorities. But it is contended that the specific interest contracted for by the grantee in this case and intended to be sold by Joseph McClure, the grantor, was his expectant interest, that which he would inherit in case she died intestate and he survived her, and that such a sale, when made in good faith, and in the absence of fraud and for full value, as averred in the cross-complaint, is valid in equity and may be enforced against the heir after he inherits the title, should he inherit as in this case, and we concede that some authorities can be found in support of such a doctrine, but as we view them they are based upon a very narrow foundation, as it is almost universally held that, even in the absence of fraud, the heir may tender back the consideration paid and rescind the contract, though he be of full age when the sale and contract or deed is made, and that the burden is upon the purchaser to show that the sale was in good faith and that no fraud was practised upon either the heir or the ancestor, and that full value was paid, and an inadequate consideration alone will defeat an enforcement of the contract; on the other hand, there are numerous authorities which hold that such a sale gives no right to any...