Parish v. Camplin

• Decision Date: 29 May 1894
• Citation: 139 Ind. 1,37 N.E. 607
• Parties: PARISH et al. v. CAMPLIN et al.
• Court: Indiana Supreme Court

139 Ind. 1

37 N.E. 607

PARISH et al.

v.CAMPLIN et al.¹

Supreme Court of Indiana.

May 29, 1894.

Appeal from circuit court, Hendricks county; J. V. Hadley, Judge.

Action in partition by Francis M. Parish and others against Joseph H. Camplin and others. Plaintiffs appeal from the decree rendered. Affirmed.

J. A. Abbott, J. G. Miles, and E. A. Miles, for appellants. Turrell & Hopkins, for appellees.

McCABE, J.

The appellants sued the appellees for partition of certain lands in Boone county. The venue of the cause was changed to Hendricks county. After overruling a demurrer to the cross complaint, issues thereon, and on the complaint, were formed, the cause for trial being submitted to the court without a jury; and the court, on proper request, made a special finding of the facts and stated its conclusions of law thereon. The court rendered judgment on the finding, over a motion by appellants Francis M. Parish and Mary M. Goodwine for judgment in their favor, on the special finding, and over a motion by them for a new trial. The errors assigned call in question the conclusions of law and the other rulings mentioned. The substance of the special finding is as follows: (1) That, in the year 1846, George Parish died intestate in Boone county, Ind., the owner in fee simple of 120 acres of land in said county, of which the land in controversy was a part, and which last-mentioned land had been assigned to his widow as dower. (2) That said George left surviving him his widow, Eliza Parish, and six children, to wit, Francis M., Emily E., Mary M., Thomas, Malinda J., and John H. Parish, his only heirs at law. Emily E. afterwards married, and is now the wife of James W. Kersey. Mary M. afterwards married Moses F. Goodwine. Malinda J. afterwards married the defendant Joseph H. Camplin, and on the 20th day of April, 1879, died intestate, without issue, leaving her said husband her only heir. Said Thomas Parish died intestate, without issue, and leaving no widow, in the year 1863. Said Eliza Parish died on the 4th day of August, 1890, intestate. Said other children of George Parish are living, and parties herein. (3) That in the spring of the year 1871, about the time of his marriage with Malinda J. Parish, the defendant Joseph H. Camplin entered into an agreement with Eliza Parish and the then living heirs of George Parish, who were all of full age, and competent to contract, to live upon the tract of land above described, and thereon provide a home for said Eliza Parish during her natural life. That not desiring to remain on said land, and improve the same, without having title thereto, he so informed said heirs; and because of said agreement, and the further consideration of $150 to be paid to each of said heirs, they (each one acting separately for himself or herself) agreed, in parol, to convey to him all their respective interests in said real estate, he, the said Camplin, to procure the necessary deeds of conveyance, and pay the expense in the execution thereof,-the said Mary M. Goodwine being at the time of said agreement, and ever since, a married woman, and a resident of the state of Missouri. The agreement among said children to convey to Camplin embraced no agreement on the part of the widow, Eliza Parish, to part with any interest she had in the land; but it was at the time believed by her, and each of said children, and Camplin, that she had no interest in said land, beyond a life estate. That in February, 1872, said Camplin, pursuant to said agreement, procured one Davis, a notary public, to prepare a deed of conveyance, and gave said Davis the names of all the grantors, to wit, Francis M. Parish and wife (Almira), Emily E. Kersey and husband (James W), John H. Parish and wife (Mary), Mary M. Goodwine and husband (Moses F.), which deed recites, in the body thereof, that Francis M. Parish and Almira, his wife, Emily E. Kersey and James W., her husband, and John H. Parish and Mary, his wife, in consideration of $450, convey and warrant to Joseph H. Camplin the undivided three-fifths of the N. W. 1/4 of the N. W. 1/4 of section 2 in township 18 N., and range 1 W., containing 41.72 acres, more or less. Mary M. Goodwine and Moses F. Goodwine, her husband, were not named in the body of said deed. The persons named in the body of said deed as grantors duly signed and acknowledged the execution thereof, and delivered the same to Camplin on the 7th day of February, 1872; and, at the time of delivery, each of the three children named as grantors received from Camplin $150, the consideration theretofore agreed upon. That none of said grantors had anything to do with the preparation of said deed, or any knowledge as to its contents, until they were called upon to execute it; but each of them voluntarily executed the same without objection, and in pursuance of said verbal agreement theretofore made, and each intending thereby to convey all his or her interest in said 41.72 acres, which at the time each believed, and Camplin also believed, was an undivided one-fifth thereof, subject only to the life estate of Eliza Parish, said deed being in the words and figures following, to wit: “This indenture witnesseth, that Francis M. Parish and Almira, his wife, Emily E. Kersey and James W. Kersey, her husband, and John H. Parish and Mary Parish, his wife, of Boone county, in the state of Indiana, convey and warrant to Joseph H. Camplin, of Boone county, in the state of Indiana, for the sum of four hundred and fifty dollars, the following real estate in ------ county, state of Indiana, to wit, the undivided three-fifths of the northwest quarter of the northwest quarter of section two (2) in township eighteen (18) north, of range one (1) west, containing forty-one and 72/100 acres, more or less. In witness whereof, the said Francis M. Parish and Almira Parish, his wife, Emily E. Kersey and James W. Kersey, her husband, John H. Parish and Mary Parish, his wife, have hereunto set their hands and seals this seventh day of February, A. D. 1872. Francis M. Parish. [Seal.] Almira Parish. [Seal.] Emily E. Kersey. [Seal.] James W. Kersey [Seal.] John H. Parish. [Seal.] Mary E. Parish. [Seal.] Mary M. Goodwine. [Seal.] Moses F. Goodwine. [Seal.]” Then follows a certificate of acknowledgment, taken by Francis M. Davis, a notary public in and for said Boone county, on the part of all the foregoing parties, except Mary M. Goodwine and Moses F. Goodwine, showing the relation of husband and wife, dated the same day. And then follows another certificate of acknowledgment, taken by Solomon Witt, a justice of the peace in and for said county, dated August 21, 1872, on part of Mary E. Parish, wife of John H. Parish. Then follows another certificate of acknowledgment, on part of Moses F. Goodwine and Mary M. Goodwine, his wife, taken by the county clerk of Clark county, Mo., on the 12th day of October, 1874. (4) That at the time of the execution of said deed, on the 7th day of February, 1872, by Francis M. Parish and wife, John H. Parish and wife, and Emily E. Kersey and husband, as heretofore found, Mary M. Goodwine resided, and still resides, with her husband, in the state of Missouri. That in 1874 said Camplin, having procured the money with which to pay Mrs. Goodwine, did pay her $150-the consideration agreed upon in 1872, as before found-for her interest in said 41.72 acres, and also further paid her $8 as interest for the delay of the $150, and sent to Mrs. Goodwine, in Missouri, the deed executed by her brothers and sisters, as before found, with instructions for her and her husband to sign and acknowledge that deed, or execute a separate deed conveying her interest in said 41.72 acres to Camplin. That Mrs. Goodwine and her husband, Moses F. Goodwine, signed and acknowledged said deed, as “parties thereto,” before the clerk of the county court of Clark county, Mo., on the 12th day of October, 1874, and returned and delivered the same to the said Camplin, who caused the same to be recorded in Deed Record No. 28, * * * in the office of the recorder of Boone county, Ind., on the 11th day of November, 1878. (5) That at the time Mrs. Goodwine and her husband signed and acknowledged said old deed, and at no other time, was her name, and the name of her husband, nor either of them, written in the body of said deed, as grantors, nor was there any change made in the description of the premises or quantity conveyed; but they both, by the signing and acknowledging and delivering of said deed to Camplin, intended thereby to convey to him (Camplin) all the interest of said Mary M. Goodwine in the said 41.72 acres which interest the said Goodwine, and also the said Camplin, at the time, believed was an undivided one-fifth thereof, subject only to the life estate of the said Eliza Parish, and which deed, at the time of signing, acknowledging, and delivering of the same, the said Goodwines and the said Camplin understood and believed was duly executed to sufficiently and fully carry out their purpose as a conveyance of title, with full covenants, to an undivided one-fifth of said 41.72 acres. (6) That by inadvertence of the scrivener in the preparation of said deed, and the mutual mistake of all the parties in the execution thereof, the names of Mary M. Goodwine and Moses F. Goodwine were omitted, as grantors, in the body of said deed; and by the further inadvertence of the scrivener in the preparation of said deed, and the mutual mistake of all the parties thereto, at the time of the execution thereof, the description of the premises conveyed was erroneously stated as the undivided three-fifths, * * * while the description of the premises intended and believed by the parties, at the time of its execution, to be duly stated in said deed, was as follows: “The undivided four fifths of the N. W. 1/4 of the N. W. 1/4 of section 2 in township 18 north, of range one west, containing 41 72/100 acres, more or less.” (7) That from March, 1871, till...