Smith v. James

• Decision Date: 07 April 1892
• Docket Number: 15,108
• Citation: Smith v. James, 131 Ind. 131, 30 N.E. 902 (Ind. 1892)
• Parties: Smith et al. v. James et al
• Court: Indiana Supreme Court

30 N.E. 902

131 Ind. 131

Smith et al. v. James et al

No. 15,108

Supreme Court of Indiana

April 7, 1892

From the Noble Circuit Court.

Judgment affirmed.

R. P Barr, H. G. Zimmerman and F. M. Prickett, for appellants.

L. H Wrigley, for appellees.

ElliottC. J. Mcbride, J. did not take part in the decision of this case.

OPINION

Elliott, C. J.

The appellees assert title to real estate, and ask to have their title quieted.

We extract from the special finding these material facts: John James was the owner of the real estate in controversy, on the 16th day of August, 1884, and on that day conveyed it to his son, the appelleeLeander James.The finding states that the grantor had entertained the purpose "to give the land to his son for some years prior to the execution of the deed conveying the real estate.In other parts of the finding the court speaks of the "execution of the deed."The only direct statement upon the subject of the delivery of the deed is this: "The court further finds that said deed to Leander was duly recorded in the proper record of Noble county, in this State, on the 20th day of April, 1885; the court further finds that said Leander did pay some debts of the said John James, contracted prior to the execution of the deed, but the amount so paid did not exceed the sum of forty dollars, and that no other consideration was stipulated between the parties thereto than that which is expressed in said deed, and that prior to the recording thereof there was no actual delivery of said deed personally to the grantee by the makers thereof, or any other than that resulting from such recording."

If we can justly say that the trial court employed the term "executed the deed" in its ordinary legal signification, then we can adjudge that the finding shows a delivery, for the term implies a delivery.Nicholson v. Combs,90 Ind. 515 (516).

If we can not do this, we must hold that the special finding of facts is insufficient to support the plaintiffs' claim of title.We say this in full view of many statements of evidentiary matters tending to show a delivery; but statements of evidentiary matters are, as has been again and again decided, out of place in a special finding.We can not give heed to the statements of evidentiary matters in which the finding abounds.Independently of the evidentiary matters, we think it must be adjudged that the trial court used the term "executed the deed" in its usual signification.It is only by so regarding the term "executed the deed" that a reasonable construction can be given the special finding.The finding can be harmonized by so regarding the term.In one place it is said that John James"conveyed the land by deed" to Leander James, and in another it is said that a purpose was entertained "for some years prior to the execution of the deed conveying the real estate."The deed recites that the grantee covenants to maintain the grantor and his wife, and the finding states that he did maintain them.We conclude that the statement of the finding which reads thus: "The court further finds that John James voluntarily and freely executed the deed of August 16th, 1884, and was always thereafter satisfied with said conveyance," considered in connection with other statements, must be regarded as the finding of the ultimate, or inferential, fact that there was an effective execution of the deed, including delivery as well as the signing and sealing.

The presumption is in favor of good faith, and against fraud, and as the special finding is silent upon the subject of fraud, it is to be construed as against the parties alleging fraud, and these parties are the appellants.

The ultimate fact of the mental soundness of the appellees' grantor is expressly stated, and that of course controls.The statement of evidentiary matters upon that subject are without force.

A motion for a new trial is a direct motion, and does not require a bill of exceptions to bring it into the record.This has long been the rule.A motion for a new trial is proper where there is a special finding, but it is not a proper mode of assailing the correctness of the conclusions of law.

A...