Ramsey v. Yount

• Decision Date: 31 October 1918
• Docket Number: 9,646
• Citation: 120 N.E. 618,68 Ind.App. 378
• Parties: RAMSEY v. YOUNT ET AL
• Court: Indiana Appellate Court

120 N.E. 618

68 Ind.App. 378

RAMSEY v. YOUNT ET AL

No. 9,646

Court of Appeals of Indiana

October 31, 1918

From Montgomery Circuit Court; Jere West, Judge.

Action by Ice H. Ramsey against Agnes R. Yount and others. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Albert D. Thomas, Michael E. Foley and Kennedy & Kennedy, for appellant.

Crane & McCabe, for appellees.

OPINION

IBACH, J.

This is an action for partition. Appellant is the widow and was the third childless wife of Alexander F. Ramsey, deceased, who died on March 11, 1907. Decedent left two children by a former marriage, one a daughter, Hepsey B. Yount, and her three children, the appellees in this appeal, and who are the grandchildren mentioned in the deed in controversy. Such deed contains the following:

"This indenture witnesseth that Alexander F. Ramsey of Montgomery county, Indiana, conveys and warrants to Ice H. Ramsey, his wife * * * for and during her natural life and at her death to descend share and share alike to the children of my daughter Hepsey B. Yount * * * for the sum of one dollar love and affection, the following real estate: (Describing it.)"

In her complaint appellant claims a fee-simple title to one-third of such lands under the statute, and a life estate in the remaining two-thirds thereof by virtue of the provisions of the deed.

To this complaint appellees filed answer, which contains substantially so much of the complaint as is hereinbefore set out, together with the following additional averments essential to a clear understanding of the questions involved: "Said deed was delivered by him (Alexander F Ramsey) to the plaintiff on the day of October, 1906, and the said deed was by the plaintiff filed for record on the 1st day of February, 1907. Upon the execution of said deed * * * she accepted the same and during the lifetime of Ramsey under and by virtue of said deed, took possession of said real estate by and through her agents and tenants and plaintiff has since leased said real estate and received the full and entire rents, profits and income thereupon. And since the death of said Ramsey, down to the commencement of this action plaintiff has continued to rent same, and she has collected rents therefrom as the same became due in the sum of $ 14,175, and she has received the same by virtue of said deed. She has made repairs proper and necessary on the premises and has paid the taxes as the same accrued during said years, has insured the buildings, and paid the premiums therefor * * * and has asserted all the rights and privileges of full and absolute ownership of the premises from the day of the execution and delivery of the deed to her during the lifetime of said Ramsey down to the time of the commencement of this action. She has never disaffirmed or disclaimed, or renounced said deed and the rights and interest thereby conveyed to her, but has claimed to own and has held, used and occupied the same by virtue of said deed and under the terms and conditions thereof."

A demurrer to the answer for want of sufficient facts to constitute a defense was overruled, and, plaintiff refusing to plead further, there was judgment for appellees. This action of the court is assigned as error and relied on for reversal.

It is contended by appellant that the facts revealed by the answer show that her husband had conveyed the lands in question by a deed in which she did not join, therefore, at his death she became absolutely seized of a one-third interest in such lands by virtue of §§ 3027, 3029 Burns 1914, §§ 2489, 2491 R. S. 1881. The further claim is also made that by the provisions of the deed she is entitled to a life estate in the remaining two-thirds of the lands described therein.

It will be conceded that under these statutes our courts have repeatedly held that on the death of a husband his widow takes a fee simple absolute in a third of all lands owned by him during the marriage in the conveyance of which she did not join. Fry v. Hare (1906), 166 Ind. 415, 77 N.E. 803, and cases cited; Wachstetter v. Johnson (1916), 61 Ind.App. 659, 665, 108 N.E. 624. This is also true if such widow is a second or subsequent childless wife, although he may have children of a previous marriage. Fry v. Hare, supra.

It must also be conceded that a husband may convey lands direct to his wife without the intervention of some third party, and the same rules will be applied to such conveyances as between parties where such relation does not exist; that is, they will be held valid until some legal reason has been shown for setting them aside.

The Supreme Court of this state, in disposing of a kindred question, has used this language: "Suppose the husband and wife should have joined in a deed and conveyed the land to a third person and such third person conveyed the land to the wife, the legal title would have passed from the husband and wife and been received back by the wife. If they could convey title in that manner, as they surely could have done, there is no sound reason why, under our laws, they could not by agreement pass the title by deed direct from the husband to the wife, he executing and she accepting the conveyance. Such a deed is valid unless attacked for some cause other than that they were...