McWhorter v. Heltzell

• Decision Date: 28 May 1890
• Docket Number: 14,374
• Citation: 24 N.E. 743,124 Ind. 129
• Parties: McWhorter et al. v. Heltzell
• Court: Indiana Supreme Court

24 N.E. 743

124 Ind. 129

McWhorter et al. v. Heltzell

No. 14,374

Supreme Court of Indiana

May 28, 1890

From the Noble Circuit Court.

Judgment affirmed.

P. V Hoffman, for appellants.

H. G Zimmerman, for appellee.

OPINION

Elliott, J.

The facts as they are stated in the special verdict are, in substance, these: The land in controversy was entered by Jerome Sweet under a land warrant in 1852, but he did not take possession of it. On the 26th day of July, 1853 Harrison Wood conveyed the land by deed of general warranty to Andrew Cramner. This deed was recorded on the 7th of September of that year, but it does not appear that Wood ever had possession of the land. Cramner lived on the land, cleared and fenced part of it. He died in possession of the land, leaving as his heirs Minerva Cramner, his widow, and Joseph J. Cramner, David B. Cramner and Ananias Cramner, his children. All of the children were infants at the time of their father's death. The widow, Minerva Cramner, married John McWhorter, a brother of the defendant James McWhorter, with whom she lived until her death, in 1862. Her second husband and two of the children of the second marriage, Sarah and Adaline, survived her. On the 30th day of January, 1869, Joseph J. Cramner conveyed the one undivided third of the land to Joseph Roe, who was then in possession of the land. On the 21st day of November, 1871, David B. Cramner conveyed to the appellee one undivided third of the land, but at the time of the execution of the conveyance the grantor was not in possession of the land, having, while an infant, executed a lease for life to Sylvius Roe, the wife of Joseph Roe. At the time of the execution of the deed David B. Cramner revoked and disaffirmed the lease executed by him during his infancy. On the 7th day of May, 1877, Ananias Cramner conveyed an undivided one-third of the land to the appellee. On the 7th day of December, 1871, George W. Heltzell was in possession of the land, and on that day Joseph Roe and his wife Sylvius Roe executed to Heltzell a deed for the undivided one-third of the land. At the time of the execution of the deed Heltzell executed a written agreement, wherein he agreed to deliver to Sylvius Roe one-third of all the crops grown on the land during her life. Heltzell failed to perform his agreement, and on the 8th day of December, 1873, Sylvius Roe instituted an action against him before a justice of the peace to recover the value of the portion of the crops he had agreed to deliver to her. She recovered judgment; Heltzell appealed to the circuit court, but she again succeeded. The judgment for damages recovered by her was subsequently paid. On the 17th day of August, 1874, Heltzell removed from the land, declared he would no longer cultivate it, and abandoned it. From that time until the death of Sylvius Roe he failed and refused to cultivate the land or to comply with his agreement. On the 17th day of August, 1874, George W. Heltzell executed a deed for the land to the appellee. In the deed executed by him it was recited that the grantee took the land subject to the agreement made at...