Meredith v. Meredith

• Decision Date: 20 April 1898
• Docket Number: 18,437
• Citation: 50 N.E. 29,150 Ind. 299
• Parties: Meredith v. Meredith
• Court: Indiana Supreme Court

50 N.E. 29

150 Ind. 299

Meredith v. Meredith

No. 18,437

Supreme Court of Indiana

April 20, 1898

From the Jay Circuit Court.

Affirmed.

Joseph H. Sell, J. J. M. LaFollette and O. H. Adair, for appellant.

W. H Williamson and Frank B. Jaqua, for appellee.

Howard C. J. Monks, J., took no part in the decision of this case.

OPINION

Howard, C. J.

This is an action by appellant to quiet her title to certain described real estate. In the complaint it is alleged amongst other things, that in the year 1848 appellant's father, who was then the owner of the land in controversy, desired to, and did, give said land to her, in consideration of the fact that she was his daughter, and did charge her with said land as an advancement out of his estate; that, however, when he made the deed of conveyance for the same, to wit, August 8, 1848, he conveyed the same to Peter S. Meredith, her husband, who took the said title and held it for and in trust for her, and that each of said parties, to wit, herself, her husband, and her father, treated said land as having been given to her; that she and her husband lived on said land until his death; that her said husband made a will, which was duly probated after his death, by which he attempted to dispose of said land, and to give some interest therein to appellee, which devise was made without appellant's knowledge or consent, and creates a cloud upon her title to said land, and upon which appellee is setting up his title thereto; that said land was held by appellant's husband for her, and that he paid nothing therefor; that appellant took said land as an advancement out of her father's estate, and receipted for the same, and was charged therewith by her father. To this complaint the court sustained a demurrer for want of sufficient facts, and, appellant refusing to plead further, judgment was rendered against her.

The facts stated in the complaint, omitting the conclusions of the pleader, show simply that appellant's father made an advancement to her out of his estate by deeding the land in controversy to her husband. No express trust in the husband is shown, and it is not contended that there was any implied trust, but counsel suggest, rather than argue, that there is a constructive trust shown. The very cases, however, cited by counsel show that there was no constructive trust. Mescall v. Tully, 91 Ind. 96; Wright v. Moody, 116 Ind. 175, 18 N.E. 608. In counsel's brief, the following is cited from Judge Mitchell's opinion in the latter case: "The...