McCord v. Bright

• Citation: 44 Ind.App. 275,87 N.E. 654
• Decision Date: 11 March 1909
• Docket Number: No. 6,577.,6,577.
• Parties: McCORD v. BRIGHT et al.
• Court: Court of Appeals of Indiana

44 Ind.App. 275

87 N.E. 654

McCORD

v.BRIGHT et al.

No. 6,577.¹

Appellate Court of Indiana.

March 11, 1909.

In Banc. Appeal from Circuit Court, Warren County; J. M. Rabb, Judge.

Action by John G. McCord, guardian of Fanny A. Bright, an infant, against Oakley Bright and others. From a judgment for defendants, plaintiff appeals. Reversed.McCabe & McCabe and Hanly, McAdams & Artman, for appellant. Frazer & Isham and A. C. Harris, for appellees.

HADLEY, J.

Appellant instituted this suit against appellees to quiet title to 400 acres of land in Warren county, averring that his ward was the owner of said lands. To this complaint, appellee Oakley Bright filed answer and cross-complaint (to which cross-complaint Fanny Agnes Bright was made a party and was duly served, and, her minority being suggested to the court, a guardian ad litem was appointed for her and appeared for her and filed answer in general denial), by which cross-complaint appellee asserted title to one-half of said lands by virtue of the deed executed by him and his wife, Nancy Luella Bright, who was also the mother of Fanny Agnes Bright. The substantial averments of the cross-complaint are set out in the special finding of the court made at the request of the parties, and it is unnecessary to set them out here. The special findings show that Oakley Bright and Nancy Luella Bright were husband and wife, and lived together continuously until her death; that said Nancy Luella Bright acquired by deed of gift from her father the title in fee simple to the lands described in the complaint; that appellant's ward, Fanny Agnes Bright, is the only child of Nancy Luella Bright, and at the time of said finding was seven years old; that shortly before the 23d day of December, 1901, said Nancy, in view of her approaching death from consumption, with the full knowledge that she would soon die, and for the purpose of making her said husband and child equal beneficiaries of her affection and bounty, and to avoid family disputes and litigation, and for the preservation of the property in the family, and being wholly concerned in the welfare of her said husband and child, agreed with said Oakley Bright to convey to said Oakley and said Fanny, as joint tenants, an undivided half in said real estate with the right of survivorship in each; that, as a part of the consideration underlying said bargain, it was agreed by said Nancy and said Oakley that said Oakley would join with his wife to convey to said Fanny an undivided one-half of said land, and thereby relinquish his rights as a husband in said one-half of said real estate of his said wife, and that said Oakley should receive no other consideration for the surrender of his rights as such husband in that part of said real estate conveyed to said child, than the title to be acquired by him under said contract in the other one-half of said land so conveyed to him, subject to said right of survivorship in said child; that to carry forward and effectuate said agreement said Nancy accompanied her said husband to a scrivener, selected by them, who then and there held himself out as a conveyancer, and informed him of all the terms and purposes of said agreement, as aforesaid, and said scrivener was requested by said parties to prepare and make such instruments of conveyance or whatever writing as was necessary to carry out and fully effectuate the terms and purposes of said agreement, as aforesaid, and thereby vest in said Fanny and said Oakley each an undivided one-half of said land, subject to the rights of survivorship; that said scrivener in response to such request prepared a deed as follows: “This indenture witnesseth: That Nancy Luella Bright (the wife of the grantee herein, Oakley Bright, and the mother of the grantee, Fanny Agnes Bright) and her husband, Oakley Bright, of Benton county, in the state of Indiana, convey and warrant to Oakley Bright and Fanny Agnes Bright and to the survivors of them of Benton county, in the state of Indiana, for the sum of twenty thousand dollars, the following described real estate, etc.”-that said scrivener advised said Nancy that said deed would be good and sufficient to vest a fee-simple title in said real estate in said Oakley and their said child as joint tenants; that said deed was duly signed by said Nancy and her said husband, and duly acknowledged and delivered; that the sole purpose and intent of said Nancy and said Oakley in the making, acknowledgment, and delivery of said instrument was to convey and warrant to said Oakley and to said Fanny each the interests aforesaid; that at the time of the execution of said instrument said Nancy was of sound mind and under no undue influence or restraint, but she was wholly unfamiliar with the facts necessary to constitute a conveyance; that she did not know and was not advised that the intervention of a trustee was necessary, or that any particular form should be complied with to convey her land to her said husband and said child; that neither her said husband nor her said child were possessed of knowledge necessary to enable them, with the aid of a scrivener, to so proceed as to avail themselves of the conveyance to them of the real estate so agreed to be conveyed to them by said Nancy; that said instrument was executed, delivered, and received by all the parties thereto in good faith, in the honest belief then entertained by all of them that said deed was good and sufficient to effectuate the purpose to convey and warrant to said Oakley and said Fanny the interest in said lands according to its purport, as aforesaid; that at the time said agreement was entered into, and at the time said instrument was executed, said Nancy was not indebted to any person whatever, and by the execution of said instrument said Nancy had no intent to defraud any person whomsoever; that after the execution of said writing on April 8, 1902, said Nancy from said malady died intestate, leaving surviving her as her sole heirs at law her said husband and child; that, after the death of said Nancy, said Fanny Agnes Bright for herself and appellant McCord for her and the guardian ad litem aforesaid each claimed, and now claim, that said Fanny is the owner in fee simple of all of said realty, and they each deny that said Oakley acquired the equitable or legal title to said real estate, and each deny that said Fanny holds the legal title to the undivided one-half of said real estate, subject to said provision as to survivorship, in trust for the appellee, Oakley Bright. Upon this finding of fact the court stated as a conclusion of law that Fanny Agnes Bright is seised of the legal title to said real estate as trustee, and holds said legal title for the joint benefit and use of herself and said Oakley Bright, each of whom is the owner in fee simple of an undivided one-half thereof as joint tenants. To this conclusion exception was duly taken. There are other conclusions stated, but it is unnecessary to set them out.

The questions involved in this case are dependable upon the construction of the deed set out in the findings. It is settled in this state that a deed from a wife directly to her husband is void at law. Sims v. Rickets, 35 Ind. 181, 9 Am. Rep. 679;Hileman v. Hileman, 85 Ind. 1;Luntz v. Greve, 102 Ind. 173, 26 N. E. 128;Barnett v. Harshbarger, Adm'r, 105 Ind. 413, 5 N. E. 718. It is also the law that in case a devise or deed to lands is made to two or more devisees or grantees as joint tenants, if for any reason any one is incapable of taking, the whole estate goes to the remainder. Dowset v. Sweet, Amb. 175; Humphrey v. Tayleur, Amb. 136; Ball v. Deas, 2 Strob. Eq. (S. C.) 24, 49 Am. Dec. 651; Davies v. Kempe, Car. 2, p. 2; Am. & Eng. Enc. of Law (2d Ed.) 667. Under the statute a married woman may, her husband joining, convey her real estate to whomsoever she desires. Burns' Ann. St. 1908, § 3952. Under these rules, then, it would appear that the legal title to the land involved was in Fanny Agnes Bright, and appellant's claim would be well founded unless some equitable principle attaches that would divest her of at least some portion of the beneficial interest or wholly avoid the deed. It is suggested in the brief, and was earnestly insistedin the oral argument, that the deed was void in toto, and conveyed no title to any one by reason of the inability of a wife to convey directly to her husband. This contention cannot be sustained upon this ground. The deed was effectual to divest the grantor of title. It was correct in form. It described the interests to be conveyed the grantees, one of whom was capable of taking. Her husband joined with her, and it was duly signed, acknowledged, and delivered. All of the usual essentials of a valid conveyance were present. It has been suggested that, if it was valid for anything, it would only convey a one half interest to Fanny Agnes Bright, and that the other half, on account of the incapacity of Oakley, remained in her, and she died seised of the same. If the conveyance had been to the grantees as tenants in common only, there might be some virtue in this contention; but the conveyance is to them as joint tenants, and such a position is not sustained by the authorities. The rule is well stated by Lord Hardwicke in the ancient case of Humphrey v. Tayleur, supra, where a testatrix had devised the residuum of her estate to two persons as joint tenants, and subsequently, by a codicil, wholly revoked the same as to one of the devisees. The question arose whether the remaining devisee took the whole, only a moiety, or nothing at all. The chancellor said: “If an estate is limited to two jointly-the one capable of taking, the other not-he who is capable shall take the whole. Where a joint tenancy to two is created in a devise, and the estate vests by the death of one, the survivor takes by the gift from the nature of the estate, and, after the release or death of one, it is pleadable by the other as a...