Osborne v. Eslinger

• Decision Date: 23 October 1900
• Citation: 58 N.E. 439,155 Ind. 351
• Parties: OSBORNE et al. v. ESLINGER.
• Court: Indiana Supreme Court

155 Ind. 351

58 N.E. 439

OSBORNE et al.

v.ESLINGER.

Supreme Court of Indiana.

Oct. 23, 1900.

Appeal from circuit court, Sullivan county; W. W. Moffett, Judge.

Partition by Flora Eslinger against Stephen P. Osborne and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

John S. Bays and John T. Hays, for appellants. Briggs & Lindley, for appellee.

DOWLING, J.

Action for the partition of lands. Issues were formed. There was a trial by the court, and a special finding of facts, on which the court stated its conclusions of law, and judgment for appellee. The following is the substance of the special finding: Martha J. Osborne, a widow, was the owner in fee simple of the lands described in the complaint, and resided thereon at the time of her death, which took place April 23, 1897. She left surviving her the appellants, who were her children, and the appellee, who was her grandchild and the only heir of a deceased daughter of Mrs. Osborne. The latter executed a will April 3, 1894, which was duly admitted to probate, by which she divided her personal estate equally among her surviving children, the appellants herein; one William L. Dix being nominated as executor. March 6, 1893, the said Martha J. Osborne, by deed, conveyed a part of her real estate to her sons Hardy Osborne and James A. Osborne, two of the appellants, and on May 16, 1895, she caused to be prepared, and then signed and acknowledged, three other deeds, viz. a deed to George W. Osborne and Josephine Dix, a deed to Elizabeth Riggs and Matilda Drake, and a deed to Stephen Parks Osborne and Allen T. Osborne. Said three deeds purported to convey all the lands owned by Mrs. Osborne, excepting those described in the deed previously made to Hardy and James A. Osborne. Mrs. Osborne placed the four deeds in an envelope, indorsed, “Martha J. Osborne. Deeds to Children,” sealed it, took them home with her, and kept the deeds in her possession until the spring of 1897. After the execution of her will, she placed it in an envelope, which she then sealed, and indorsed, “Last Will of Martha J. Osborne,” and the will so remained until after the death of the said testatrix. In the spring of 1897, Mrs. Osborne handed the deeds and the will, wrapped together in a paper, to one Mary Davis, an aged sister-in-law, who made her home with her, saying that she desired Mrs. Davis “to take care of the papers and keep them until after her [Mrs. Osborne's] death, and then deliver them to the one who should settle her estate.” Upon reflection, and because of the advanced age of Mrs. Davis, who was then 72 years old, Mrs. Osborne took back the papers, and put them in a “press” in her home, and told Mrs. Davis she had placed them there, adding, “In case I get sick, you take care of these papers, and when I die give them to the one who settles my estate.” Mrs. Osborne was then in good health, but soon afterwards became very ill. Agreeably to her instructions, Mrs. Davis took the papers from Mrs. Osborne's “press,” and deposited them in a box of her own, over which she had exclusive control, and so kept them until after the death of Mrs. Osborne. The next day after Mrs. Osborne was taken sick she called Mrs. Davis to her bedside, and asked if she had taken charge of the papers as she (Mrs. Osborne) had requested. Mrs. Davis answered, “Yes; I have.” Mrs. Osborne responded, “All right.” Mrs. Osborne died April 23, 1897. Soon after the death of Mrs. Osborne, Mrs. Davis met all of the appellants, and also William L. Dix (who had been named as executor of Mrs. Osborne's will), at the late residence of the decedent. She handed the envelope containing the deeds to Allen T. Osborne, who read them, and delivered them to the grantees, respectively. The grantees caused the deeds to be recorded in the proper office, and thereupon took, and ever since have held, possession of the several parcels of land. The will of Mrs. Osborne was also delivered by Mrs. Davis to Allen T. Osborne at the time the deeds were delivered. It was opened, read, and was afterwards admitted to probate in the proper county, and is yet in full force. Mrs. Mary Davis had no knowledge that the package intrusted to her by Mrs. Osborne contained said deeds and will until after the death of Mrs. Osborne, but she did know that Mrs. Osborne had selected William L. Dix to settle her estate.

The conclusions of law stated by the court upon the foregoing facts were these: “(1) That the said deeds made by Martha J. Osborne to the several cross complainants herein were not fully and lawfully executed, for want of a lawful delivery. (2) That the plaintiff is the owner in fee simple, by descent from Martha J. Osborne, of an undivided one-ninth interest in the following real estate, in Sullivan county, Indiana, to wit: The southeast quarter of section 7, township 8 north, range 9 west, 160 acres, more or less. (3) That the plaintiff is entitled to partition of her interest in said land.”

It is contended on behalf of appellants that the acts and words of Mrs. Osborne, when she placed the deeds in her “press,” and instructed Mrs. Davis, in case she (Mrs. Osborne) got sick, to take care of the papers, and when she died to give them to the one who settled her estate, together with the act and declaration of Mrs. Davis, after Mrs. Osborne became ill, in taking possession of the papers, with the knowledge and approval of Mrs. Osborne, constituted a sufficient delivery. On the other hand, the appellee insists that there was no delivery; that Mrs. Osborne never intended to part with her control over the deeds; and that Mrs. Davis held them only as the bailee and for the use of Mrs. Osborne. This court has frequently been called upon to decide whether or not a deed had been delivered, and a few of the cases, with the circumstances attending the supposed delivery in each of them, are the following:

In Fewell v. Kessler, 30 Ind. 196, the parties to a deed caused it to be prepared, and agreed that it should be signed and acknowledged, and left with a justice of the peace for the grantee. In deciding the case, Frazer, J., said: “Nothing is plainer in the law than that such facts constitute a good delivery of a deed.”

One Loveless placed a deed in the hands of one Rash to be held by him during the grantor's lifetime, for certain of Loveless' children, and, at his death, to be delivered by Rash to the grantees named therein. Rash accepted the deed, and held it for the grantees until shortly after the death of the grantor, when he delivered the same to the grantees. The court said: “These facts show that William Loveless verbally authorized Rash, as his agent, to do the things mentioned. Upon the death of Loveless the authority was thereby revoked, and Rash ceased at once to be the decedent's agent for any purpose, and therefore could not, for the deceased grantor, deliver the deeds.” Jones v. Loveless, 99 Ind. 325.

In Owen v. Williams, 114 Ind. 179, 15 N. E. 678, the grantor was about to undergo a dangerous surgical operation. He gave to one of his sons a large bundle of papers among which were deeds to his children inclosed in a sealed envelope, saying: “Here are the deeds belonging to you children; take care of them, and, after my death, deliver them to the children.” He afterwards said to the son who had the papers, “I want you to see that the children get the deeds after my death.” Held a sufficient delivery to all of the grantees.

Smiley and wife executed five deeds, by which they conveyed certain lands to the husband's children and grandchildren. Two years afterwards Smiley made a will, in which he referred to these deeds, and directed his executor, at his death, to deliver them to the grantees. A few days after the execution of the will Smiley placed the deeds in the hands of a son, and directed him to retain them until he (the grantor) should die, and then to deliver them to the grantees, respectively. Held a good delivery as to all. Smiley v. Smiley, 114 Ind. 258, 16 N. E. 585.

In Goodpaster v. Leathers, 123 Ind. 121, 23 N. E. 1090, the deed was duly signed and acknowledged by the grantor in his lifetime, and was by him deposited in the hands of a third person, with instructions to deliver to his widow after his death. Upon these facts the court, by Mitchell, C. J., said: “Where a grantor signs and acknowledges a deed, and deposits it with a third person, to be delivered by him to the grantee at the death of the grantor, without reserving to himself any right to control or record the instrument, if the deed is afterwards delivered to the grantee the title passes, and the deed ordinarily takes effect, by relation, as of the date of the first delivery.”

In Dinwiddie v. Smith, 141 Ind. 318, 40 N. E. 748, the deed was delivered by the grantor to a third person for the use of the grantee. The deed was sustained.

S., together with his wife, signed and acknowledged a deed conveying to his daughter, Mary R., certain real estate. He handed the deed to his wife, saying: “Take it, and keep it in a safe place until my death; then deliver it to B. F. Wells.” Indorsed on the deed were the words, “After my death this deed to be delivered to B. F. Wells.” The wife kept the deed as directed, and at the death of the grantor delivered the same to Wells, who caused it to be recorded, and then delivered it to the grantee. The court held that the deed was not invalid as an attempt by the grantor to make a testamentary disposition of the land without the formalities of a will, and that the delivery to the wife for the grantee was effectual. Stout v. Rayl, 146 Ind. 379, 45 N. E. 515.

In Stokes v. Anderson, 118 Ind. 533, 21 N. E. 331, 4 L. R. A. 313, the facts were these: S. signed a deed, bill of sale, and promissory note, and left them upon the table. He neither said nor did anything to indicate an intention to deliver them. On the contrary, the circumstances indicated that he did not wish to execute the writings at...