Sims v. Smith

• Citation: 99 Ind. 469
• Decision Date: 09 January 1885
• Docket Number: 11,937
• Parties: Sims v. Smith et al
• Court: Supreme Court of Indiana

99 Ind. 469

Sims v. Smith et al

No. 11,937

Supreme Court of Indiana

January 9, 1885

From the Hamilton Circuit Court.

A. F Shirts, G. Shirts and W. R. Fertig, for appellant.

D Moss, R. R. Stephenson, H. A. Lee, W. Neal and J. F. Neal for appellee.

OPINION

Colerick, C.

This action was brought by the appellant against the appellees to quiet her title to certain real estate in Hamilton county, Indiana. Her husband, John F. Sims, united with her, as a plaintiff, in the institution of the action, but during its pendency he died, and, by reason thereof, it was thereafter prosecuted by her alone. It was averred in the complaint that on the 24th day day of July, 1844, and prior to that time, the appellant was the owner in fee simple of the west half of the southwest quarter of section six (6), township nineteen (19) north, of range five (5) east, containing eighty acres; that on said day she, with her said husband, executed a deed to Henry Bardoner, purporting to convey said land to him, and that he, by divers mesne conveyances, conveyed the same to the appellee Martha Smith; that at the time of the conveyance to Bardoner the appellant was a minor, under the age of twenty-one years, and then was, and ever since had been, the wife of said John F. Sims; that on the -- day of March, 1881, before the commencement of the action, she and her husband disaffirmed the conveyance to Bardoner on account of her minority, and notified the appellees of the fact; that the appellees were denying the right of the plaintiffs to disaffirm said deed, and asserting that they were the absolute owners of said real estate. Wherefore the plaintiffs prayed that said deed be declared void as to the appellant, and that her title to said land be quieted, etc.

To this complaint a demurrer, alleging insufficiency of facts to constitute a cause of action, was sustained, to which ruling the plaintiffs excepted, and refusing to amend their complaint, final judgment, on demurrer, was rendered against them, from which they appealed to this court, where the judgment was reversed. It was then held by this court that the complaint was sufficient. See Sims v. Smith, 86 Ind. 577. On the remanding of the cause to the court below, the appellees filed an answer of general denial to the complaint, and also filed a cross complaint, in which many facts were averred, for the purpose of showing that the appellant had, by certain acts, therein recited, ratified and confirmed the deed so executed by her and her husband to Bardoner, or that she was, by said acts and by omissions to act, bound, at least, by an estoppel in pais against disaffirming it, and it was also therein averred that the appellant was, in public speeches, declaring that she was the owner of said real estate, which declarations were false, and cast a cloud upon the appellees' title to said real estate, and prayed that the title of the appellee Martha Smith to the land might be quieted as against the appellant, etc.

A demurrer to the cross complaint was overruled, and thereupon an answer thereto in three paragraphs was filed, to the second and third paragraphs of which a reply in denial was filed. The first paragraph of said answer was a general denial. The issues so formed were tried by the court, who made a special finding of the facts in the case, and its conclusions of law thereon, as follows:

"Special Finding.

"This cause having been submitted to the court for trial, the court, at the instance and request of the plaintiffs, with the view of excepting to the conclusions of law, finds the facts specially in said cause as follows:

"That on the 24th day of July, 1844, the plaintiff, being the owner in fee simple of the lands described in the complaint, together with 360 acres of other lands, signed and acknowledged with her husband, John F. Sims, a warranty deed for all of said lands for the purpose of conveying said lands to one Henry Bardoner, in exchange for another body of land in the neighborhood then owned by said Henry Bardoner; that she intrusted her said husband with said deed for the purpose of delivering the same to said Henry Bardoner, who resided in Hamilton county, Indiana. She, the plaintiff, and her husband, then resided in Clinton county, Indiana; that he, said husband, came to Hamilton county and met said Bardoner at Esquire Hall's, in Hamilton county, on the 1st day of August, 1844, when said Bardoner and his wife signed and acknowledged a deed for their said lands to said John F. Sims; but by reason of some imperfection in said deed from the Sims, said Bardoner failed or refused to accept the same at that time, and said John F. Sims returned to his home in Clinton county, where the plaintiff was then living with him, and in April, 1845, the said Sims returned to Hamilton county with said deed of himself and wife for said lands of his said wife, and said Bardoner thereupon accepted the same, and said exchange of lands was thereupon consummated; and said Henry Bardoner thereupon took possession of the lands in controversy, along with the other lands mentioned in said deed, and he and his grantees, including the defendants in this suit, have held and had the open, notorious, uninterrupted and adverse possession and control thereof ever since, claiming to be the absolute owners thereof, with the knowledge of the plaintiff; that she has resided in the immediate neighborhood of said lands ever since said trade, living within from one to six miles all the time, and knowing that said Bardoner and his grantees were constantly improving them; that the lands that said Bardoner conveyed to said Sims in said exchange were of equal value at the time of the exchange with the lands he had received from the plaintiff; that the plaintiff knew that the deed to said lands had been made to her husband, and made no objection thereto; that in 1847, while living on said lands so received in exchange, she expressed herself as well satisfied with the trade; that the wild lands they had traded were of no use to them, and that the farm they received was well improved, and her husband could make a good living upon it, while he was not able to clear and improve the wild lands; that her step-father and former guardian, after discovering that her said deed had been signed by her while a minor, informed her that her conveyance was not good; and after consultation with her husband upon the same subject, she thereafter, on divers occasions, expressed herself well satisfied with the trade in the manner aforesaid, and consented to the transfer of the property so received from Bardoner in the manner hereafter found, and did not disaffirm said deed until 1880 and 1881, which the court finds to be an unreasonable delay under the facts and circumstances in the case. The said disaffirmance was in writing, the first signed by herself and the second by herself and husband. The disaffirmance was upon the alleged ground of her infancy at the time of the execution of said deed; that the plaintiff was a minor when she signed and acknowledged the said deed for said lands to Henry Bardoner on the 24th day of July, 1844, but she became of the age of twenty-one years on the 8th day of November, 1844; was, consequently, over twenty-one years of age when the deed was delivered; that the plaintiff was married to John F. Sims previous to the execution by them of said deed to Bardoner, and has remained his wife until his death, which occurred since the commencement of this suit; that the plaintiff had no knowledge of the actual time of the delivery of said deed to Bardoner by her husband, but she authorized him to deliver it, but no specified time was given in which it should be delivered.

"The court further finds that the plaintiff, after she arrived at the age of...