Pointer v. Lucas

• Decision Date: 15 September 1960
• Docket Number: No. 1,No. 19291,19291,1
• Parties: Harry POINTER, 11, Patricia Pointer Schaffer, Elsie Pointer, Appellants, v. Helen LUCAS, Nellie Deatline, Varnell Beard, Jack Naugle, Mamie J. Pointer, Appellees
• Court: Indiana Appellate Court

Page 196

169 N.E.2d 196

131 Ind.App. 10

Harry POINTER, 11, Patricia Pointer Schaffer, Elsie Pointer, Appellants, v. Helen LUCAS, Nellie Deatline, Varnell Beard, Jack Naugle, Mamie J. Pointer, Appellees.

No. 19291.

Appellate Court of Indiana, Division No. 1.

Sept. 15, 1960.

Dowden, Denny, Caughran & Lowe, William S. Hall, Indianapolis, for appellants.

John R. Walsh and Gilbert W. Butler, Martinsville, for appellees Helen Lucas and Nellie Deatline.

Kivett & Kivett, Pearl Lee Hampton, Indianapolis, for appellee Mamie J. Pointer.

Charles H. Foley, Martinsville, for appellees Varnell Beard, Jack Naugle and Jay Naugle.

COOPER, Judge.

This is an appeal from the Morgan Circuit Court arising out of a dispute over the ownership of a forty-acre tract of land located in Morgan County, State of Indiana.

The record before us reveals that two of the appellees, namely: Helen Lucas and Nellie Deatline, on February 19, 1957, brought an action in the Morgan Circuit Court to partition and quiet the title to said land against the appellants herein. After the cause was submitted and judgment rendered in favor of the appellees, the appellants herein prosecuted this appeal from said judgment, the assigned error being, 'The court erred in overruling the appellants' motion for a new trial'.

The appellants' motion for a new trial was based upon the following statutory grounds, to-wit:

1. The decision of the court is contrary to law;

2. The decision of the court is not sustained by sufficient evidence.

In reviewing the record before us, it is apparent that the ownership of the said land depended upon the construction of the language contained in a certain deed executed by Benjamin F. Pointer and Nancy A. Pointer, husband and wife, the owners thereof, on July 27, 1903.

There is no dispute as to the facts in the case as they were all stipulated by the parties. It is our opinion that all of such facts as stipulated are essential to a full and complete understanding of the case now before us. It appears from the records that the stipulation reads as follows:

'IT IS STIPULATED BY AND BETWEEN THE PARTIES HERETO THAT THE FOLLOWING MAY BE CONSIDERED BY THE COURT AS FACTS IN EVIDENCE IN THIS CAUSE:

'1. Benjamin F. Pointer and Nancy A. Pointer, his wife, on July 27, 1903 executed the following deed, to wit:

"THIS INDENTURE WITNESSETH: That Benjamin F. Pointer and Nancy A. Pointer, husband and wife of Morgan County, in the State of Indiana, Convey and Warrant to Jessie Withington of Morgan County, in the State of Indiana, for the sum of Love and Affection, the receipt of which is hereby acknowledged, the following real estate in Morgan County, in the State of Indiana, to wit:

"The Southeast quarter (SE 1/4) of the Southeast quarter (SE 1/4) of Section One (1) Township Twelve (12) North of Range One (1) East, containing Forty (40) acres, more or less.

"This deed is to take effect and said Jessie Withington is to come into possession of the above described land at the death of both Benjamin F. Pointer and Nancy A. Pointer. If said Jesse Withington should have issue after this date she may devise said land to such issue, but in the event she should die without such issue then the land shall revert to her brothers and sisters or their heirs.

"IN WITNESS WHEREOF, the said Benjamin F. Pointer and Nancy A. Pointer, husband and wife have hereunto set their hand and seal, this 27 day of July, A.D. 1903.

"B. F. Pointer (L.S.)

"Nancy A. Pointer (L.S.)

"State of Indiana, Morgan County, SS:

"Before me. J. E. Sedwick, in and for said County, this 27 day of July 1903, personally appeared B. F. Pointer and Nancy A. Pointer and acknowledged the execution of the annexed deed.

"Witness my hand and notarial seal.

"(Seal) J. S. Sedwick,

"Notary Public.

"My commission expires: Jan. 2, 1907.

"Recorded: March 5, 1907 at 8:00 o'clock A.M.

"John V. King,

"Recorder Morgan County

"Deed Record 76 page 452.'

'2. That the said Benjamin F. Pointer departed this life testate a resident of Morgan County, Indiana, on September 12, 1903, and his wife the said Nancy A. Pointer departed this life on September 24, 1927.

'3. That the said Benjamin F. Pointer and Nancy A. Pointer left surviving as their children and heirs at law one Nellie Hiatt now Nellie Deatline and William Wallace Pointer, Rufus R. Pointer, Harry Pointer and Jesse Withington as their children and only heirs at law.

'4. That thereafter the said William Wallace Pointer departed this life testate on April 6, 1945, leaving surviving him as his heirs and only heirs at law Varnell Beard, Jack Naugle and Jay Naugle, grandchildren.

'5. That thereafter on May 18, 1952, Harry Pointer departed this life intestate a resident of Marion County, Indiana, leaving surviving him as his heirs and only heirs at law Elsie Pointer, his widow, Harry Pointer II, and Patricia Pointer Schaffer, the said Harry Pointer II and Patricia Pointer Schaffer being the children of Edward Pointer who was adopted by the said Harry Pointer as a child on January 1921, being then twenty (20) years of age and who had departed this life intestate July 16, 1947, prior to the death of his adopted father, Harry Pointer, and that at the time of his death did leave the said Harry Pointer II, and Patricia Pointer Schaffer as his only children.

'5. That the said Elsie Pointer was the first and only wife of Harry Pointer deceased and the natural mother of Edward Pointer.

'6. And that thereafter Rufus R. Pointer departed this life intestate a resident of Marion County, Indiana, leaving surviving him as his heirs and only heirs at law Mamie J. Pointer a second childless widow whose age on December 5, 1956 was Sixty-seven (67) years and Helen Lucas a daughter.

'7. That the said Jesse Withington grantee in the deed hereinabove referred to did by virtue of said deed upon the death of Nancy A. Pointer go into possession of the real estate described in said deed and continued in possession thereof until the date of her death on December 5, 1956; that her name at the time of her death was Jesse Poston and received all the income, rents and profits therefrom; paid the taxes thereon until the date of her said death. That the said Jesse Withington Poston had no children born to her after July 27, 1903; that prior to July 27, 1903 there had been born to the said Jesse Withington one child by a previous marriage, to-wit: Lincoln Breedlove, who was in being on July 27, 1903.

'8. That there is now in being the said Nellie Hiatt Deatline, Varnell Beard, Jack Naugle, Jay Naugle, Mamie J. Pointer, Helen Lucas, Elsie Pointer, Harry Pointer II, Patricia Pointer Schaffer, all of whom survived the said Jesse Withington Poston and were in being at the date of her death.'

The foregoing was all of the evidence given in said cause. Thereafter, the trial court, upon the above-stipulated evidence, made the following pertinent findings:

'* * * that said grantors did intend and that the true intent and meaning of the language used in the above described deed of conveyance is that said real estate vested in the said Jessie Withington, daughter of the grantors, and in the event the should die without issue born to her subsequent should vest in children of the grantors or their heirs, and they did not intend that said real estate vest in persons other than their lineal descendants to be ascertained as of the time of the death of the said Jessie Withington, their daughter.

'* * * that the plaintiffs, Helen Lucas and Nellie Deatline and the defendants, Varnell Beard, Jack Naughle and Jay Naugle are entitled to have their title to said real estate quieted as against the remaining defendants herein.' (Harry Pointer II, Patricia Pointer Schaffer, Elsie Pointer, appellants, and Mamie J. Pointer, appellee.)

The trial court found that said first parties are the absolute owners of said real estate and the second parties have no interest whatsoever therein.

The record in the case creates some doubt whether the instrument referred to as a 'Warranty Deed' was in fact a deed, rather than a testamentary instrument, since there is nothing in the record showing clearly that there was an actual delivery of the deed by the grantors to the grantee, which is always necessary under our law to make a deed effective as an instrument of conveyance. The deed was signed and acknowledged on July 27, 1903, and was duly recorded in the office of the Recorder of Morgan County on March 5, 1907, which was after the death of the grantor, Benjamin F. Pointer, on September 12, 1903, but before the death of his wife, Nancy A. Pointer, on September 24, 1927. The grantors Benjamin F. Pointer and Nancy A. Pointer were the father and mother, respectively, of the grantee, Jessie Withington, and the consideration for the deed was love and affection. The parties stipulated that the deed was 'executed,' and the trial court so found. Our court has held in the case of Bercot v. Velkoff, 1942, 111 Ind.App. 323, 332, 41 N.E.2d 686, 689, that:

'In order that an instrument purporting to convey title to land or an interest or estate in land may be valid as a deed and operative to pass such title to or interest in land, it is essential that there be a grantor, a grantee, and a thing granted, and that it convey a present interest or estate. It is further necessary that the instrument be signed by the grantor, or some one whom he directs to sign for him, or his authorized agent, be attested and acknowledged in conformity to the local statutory requirements, and delivered by the grantor to the grantee or to some one in his behalf and accepted by the grantee.'

See also Sodders v. Jackson, 1942, 112 Ind.App. 179, 44 N.E.2d 310; Collins v Cornwell et al., 1892, 131 Ind. 20, 30 N.E. 796. All of the parties to this action base their claim of ownership upon the deed itself and all concede and acknowledge its legality. We acquiesce in this conclusion of the parties and for the purpose of this opinion shall treat it as a valid...