Price v. Brittain

• Decision Date: 12 January 1923
• Docket Number: 11,278
• Citation: 137 N.E. 620,80 Ind.App. 294
• Parties: PRICE v. BRITTAIN ET AL
• Court: Indiana Appellate Court

137 N.E. 620

80 Ind.App. 294

PRICE v. BRITTAIN ET AL

No. 11,278

Court of Appeals of Indiana

January 12, 1923

Rehearing denied June 28, 1923.

From Greene Circuit Court; Thomas Van Buskirk, Judge.

Action by Alice B. Price against George W. Brittain and others. From a judgment for defendants, the plaintiff appeals.

Affirmed.

W. L Slinkard, for appellant.

Webster V. Moffett, Willis Hickam, Cyrus E. Davis and Guy H Humphreys, for appellees.

OPINION

REMY, J.

In 1885, George W. Brittain, with his own money, purchased the land in controversy, but caused the title to be placed in the name of his wife Minervah J. Brittain, who immediately took possession of the land, and with her husband resided thereon until her husband's death in February, 1895. On August 3, 1889, Minervah J. Brittain, executed and delivered to her said husband her warranty deed for the land, which deed was signed only by herself. In 1894, George W. Brittain executed his will by the terms of which he gave a life estate in all of his "property both personal and real" to his said wife, except the sum of $ 5 each to three of his children. He also provided that the fee of the real estate devised to his wife for her life should at her death go to his daughter Charlotta Snyder and appellant, a granddaughter, share and share alike. Soon after the death of George W. Brittain, his will was probated. At the time of making his will, and continuously till his death, George W. Brittain owned real estate other than the land in controversy. In 1914, Minervah J. Brittain executed her will, and without specific description "devised and bequeathed" all of her property "both personal and real" to certain of her grandchildren, and expressly provided that appellant and Charlotta Snyder should not participate in her estate. At the time of the execution of her will, and at the time of her death, Minervah J. Brittain did not own the fee simple of any real estate, unless it be the land in controversy which by her separate deed she had conveyed, or sought to convey, to her husband in 1889.

This is a suit by appellant against appellees to quiet her title to the real estate purchased by George W. Brittain in 1885, the title to which he, at the time, caused to be conveyed to his wife. It is averred in the complaint that before the commencement of the suit Charlotta Snyder had quitclaimed to appellant any interest she had in the real estate.

The court trying the case found specially the facts above stated, and stated as a conclusion of law that "the real estate described in plaintiff's complaint belonged to Minervah J. Brittain at the time of her death," and judgment was rendered accordingly.

Appellant's claim depends upon the validity of the separate deed of Minervah J. Brittain to her husband on August 3, 1889, purporting to convey to him the real estate here in controversy. If that deed was a valid conveyance, appellant must prevail, otherwise the judgment must be affirmed.

Under the statutes, as well as the decisions of the courts of appeal, of this state, a married woman has no power to convey her separate real estate except by deed in which her husband shall join. § 7853 Burns 1914, § 5117 R. S. 1881; Johnson v. Jouchert (1890), 124 Ind. 105 24 N.E. 580, 8 L.R.A. 795; Cook v. Walling (1889), 117 Ind. 9, 19 N.E. 532, 2 L.R.A. 769, 10 Am. St. 17. It has been decided by the Supreme Court and this court that a deed from a wife directly to her husband is void. Luntz v. Greve (1885), 102 Ind. 173, 26 N.E. 128; McCord v. Bright (1909), 44 Ind.App. 275, 87 N.E. 654. It is urged by appellant that, since the statute provides that a married woman "is bound by an estoppel in pais like any other person," therefore Minervah J. Brittain was, and that appellant who claims through her is now, as to the deed of ...