Scott v. Harris

• Decision Date: 31 March 1891
• Docket Number: 14,893
• Citation: Scott v. Harris, 127 Ind. 520, 27 N.E. 150 (Ind. 1891)
• Parties: Scott v. Harris et al
• Court: Indiana Supreme Court

27 N.E. 150

127 Ind. 520

Scott v. Harris et al

No. 14,893

Supreme Court of Indiana

March 31, 1891

From the Wayne Circuit Court.

Judgment affirmed, with costs.

H. C Fox and J. F. Robbins, for appellant.

J. F Kibbey, for appellees.

OPINION

Olds, C. J.

John Scott died the owner of certain real estate in Wayne county and this is an action for the partition of the same between his widow and children, who are parties to the suit. It was sought to charge, and the court did charge, the appellant with an advancement to him of sixty acres of land conveyed to appellant by his father, John Scott, in his lifetime.

The first question presented and discussed is as to whether or not the evidence shows the land to have been an advancement, and we are favored with a learned and interesting argument on behalf of counsel for the appellant as to the definition and nature of an advancement, but what it takes to constitute an advancement is so well understood by the legal profession, and the books are so replete with definitions of an advancement that we regard it unnecessary to go into the question and attempt to formulate a definition which would cast any light upon the question presented. The most important legal principle to be considered in determining the question presented is as to what legal principle applies in weighing the evidence adduced, from which it must be determined whether the land was transferred as a gift, an advancement, or under a bargain and sale by which it was to be paid for at a stipulated amount, and which amount stands as an unliquidated indebtedness against the appellant. If an advancement at all, it remains so regardless of any technical definition that may be given to the word "advancement."

In the case of Ruch v. Biery, 110 Ind. 444, 11 N.E. 312 (448), the rule is stated to be: "A voluntary conveyance of land by a parent to a child is presumed to have been intended as an advancement, and the burden of proof is upon the party claiming it to be anything else." Adhering to this rule the court was justified in holding, under the evidence in this case, that the land conveyed by the father to the appellant was an advancement. It is true the evidence is not very satisfactory, but there is some evidence to sustain the finding of the court, which, together with the presumption in favor of an equal distribution of property, supports the finding that it was an advancement. There is also evidence to sustain the finding as to the amount charged against the appellant. There was some evidence fixing the value of the land at $ 3,000, and that appellant had paid $ 400 on the same; the deed fixed its value at $ 4,800; certainly the appellant can not complain when he is only charged $ 2,600.

The next reason urged why the judgment should be reversed relates to the form of interlocutory order for partition.

The interlocutory order and judgment is as follows: "It is therefore, ordered, considered and adjudged that each of the said plaintiffs, Laura Harris, E. Celeste Bond, Mary Bond and Ionia Bond, is the owner of the undivided two-fifteenths of the real estate described in said complaint, and situate in Wayne county, State of Indiana, to wit: The east half of the northwest quarter of section thirty-two (32), township seventeen (17), range thirteen (13) east, excepting twenty (20) acres out of the southeast corner of said quarter, beginning at the southeast corner of said quarter; thence west forty-one (41) rods and two and one-half (2 1/2) links; thence east forty-one (41) rods and four (4) links; thence south seventy-seven (77) rods and twenty-two (22) links, each share of which is enhanced in value by the said advancement to said James A. Scott; that said Martha J. Scott is the owner in fee of the undivided one-third of said real estate, and that said James A. Scott is the owner of the undivided two-fifteenths of said real estate, less twenty-six hundred dollars, the amount of said advancement to him. It is further ordered that in making partition of said real estate among said owners that said advancement of twenty-six hundred dollars be considered and charged to said defendant, James...