Smith v. McClain

• Decision Date: 14 October 1896
• Docket Number: 17,297
• Citation: 45 N.E. 41,146 Ind. 77
• Parties: Smith v. McClain et al
• Court: Indiana Supreme Court

45 N.E. 41

146 Ind. 77

Smith v. McClain et al

No. 17,297

Supreme Court of Indiana

October 14, 1896

From the Marion Circuit Court.

Reversed.

Miller Winter & Elam, for appellant.

Denny & Taylor, for appellees.

OPINION

Monks, C. J.

Appellees brought this action to quiet their title to and recover possession of certain real estate, described in the complaint. Appellant filed an answer and also a cross-complaint to quiet his title to the same real estate. Appellees filed an answer to said cross-complaint and reply to appellant's answer.

The cause was tried by the court and a finding made in favor of appellees, and over a motion for a new trial judgment was rendered against appellant. The causes specified for a new trial were:

First. Errors of law occurring at the trial in admitting certain evidence over appellant's objection.

Second. That the finding of the court was not sustained by sufficient evidence.

Third. That the finding of the court was contrary to law.

Fourth. Error in assessing the amount of the recovery, the same being too large.

The action of the court in overruling the motion for a new trial is assigned as error.

It appears from the evidence that the real estate in controversy, a house and lot in the town of Zionsville, worth about $ 1,000.00, was owned in fee-simple at the time of his death, in April, 1884, by one Jonas Case, and was his family residence. He owned at the same time 120 acres of farming land in Marion county, Indiana, worth about $ 7,000.00, and some business property in the town of Zionsville. His heirs at law were his widow, Margaret E. Case, a second wife without children, and the appellees, Frances A. McClain and one William H. Case, children by a former wife. William H Case died in December, 1891, leaving the appellees, Aletta M., Neldo O., and Flossie A. Case, his only children and heirs at law. The widow, Margaret E. Case, died in January 1892. After the death of Jonas A. Case, she married Ithamar Whicker, who survived her, and with one Mary Stultz, her mother, constituted her sole heirs at law. After the death of Jonas Case, on the 19th day of September, 1884, his children, William H. Case and his wife and Frances A. McClain and her husband, executed a quit-claim deed to the widow, Margaret E. Case, for the house and lot in Zionsville. The deed recites a consideration of $ 1,000.00, and immediately following the description of the property contained a further recital in the following language: "The grantors herein, William H. Case and Frances A. McClain, being the sole and only heirs of Jonas Case, except the grantee, who is the widow of said Case and without children, and this conveyance being made in settlement and adjustment of their interests in real estate herein described and certain lands in Marion county, Indiana, described in deed of even date herewith by grantee herein and Frances A. McClain and her husband to William H. Case."

At the same time Margaret E. Case and Frances A. McClain and her husband executed a quit-claim deed to William H. Case for "all their right, title and interest" in the 120 acres of farming land in Marion county, Indiana. This deed recites a consideration of $ 1,000.00, and following the description contains a further recital as follows: "which the said Margaret E. Case, as widow without children, and Frances A. McClain, as daughter, have derived as heirs of Jonas Case, said Frances A. McClain and the grantee herein, being the only children and heirs of Jonas A. Case."

In consideration of the conveyance to William H. Case by Margaret E. Case and Frances A. McClain and husband of "all their right, title and interest" in said 120 acres of real estate, he paid his sister, Mrs. McClain, $ 3,500.00, and he and said Frances A. McClain promised to pay Margaret E. Case $ 1,000.00, and executed the quit-claim deed to her for the real estate in controversy.

The first deed was properly recorded shortly after its execution in Boone county, Indiana, and the second deed in Marion county, Indiana. No disposition was made of the business property in Zionsville, of which Case died seized. It continued to be held by his widow and children as tenants in common until the death of the widow. After the execution of the deeds of September 19, 1884, Margaret E. Case remained in exclusive possession of the house and lot in Zionsville until her death, after which her second husband, Ithamar Whicker, and mother, Mary Stultz, claimed that it had descended to them as her heirs at law. On the 25th of March, 1892, Mrs. Stultz, by quit-claim deed conveyed her interest to Mr. Whicker, and on the 21st of April, 1892, he conveyed the entire property by quit-claim deed to the appellant, who took and retained possession until the time of the commencement of this suit.

The court permitted the witness, Sarah S. Case, to testify as to the purpose of making such deed, and as to statements made by Margaret E. Case before and at the time of its execution, to show that it was made for the purpose of effecting a partition and without any intention of increasing the title of Margaret E. Case. For the same purpose, the deed executed at the same time by Margaret E. Case and Frances A. McClain to William H. Case for the farming land in Marion county was admitted in evidence, and Mrs. Klingenschmidt was also permitted to testify as to certain statements made to her subsequently by Margaret E. Case, which it was claimed tended to show that she understood at her death the property in controversy would go to the appellees. All this evidence was objected to by the appellant, and its admission properly excepted to.

The theory upon which appellees base their right to recover is that the interest of Margaret E. Case in the real estate of Jonas Case, deceased, at her death descended to the appellees, the children and grandchildren of Jonas Case, as her forced heirs, and that the deed which was executed to her on the 19th day of September, 1884, by the children of Jonas Case was made only for the purpose of effecting a partition between her and the children of Jonas Case of the house and lot in Zionsville, in controversy in this action, and the 120 acres of farming land in Marion county, and that her title to the property in controversy was not increased by such deed, but that at her death it descended to the appellee as her forced heirs, precisely as if such deed had not been made.

The theory of the appellant was: First, that the legal effect of the deed of September 19, 1884, executed by Frances A. McClain and William H. Case to Margaret E. Case, was to make the latter the absolute owner in fee-simple of two-thirds part in value of the real estate in controversy, leaving only one-third part, which had descended to her from Jonas Case, subject to descend at her death to the children and grandchildren of Jonas Case as her forced heirs, and that such legal effect could not be impaired or changed by parol evidence; that the deed was made for the purpose of effecting a partition only, or of statements or declarations of the parties thereto as to the title that was intended to be conveyed thereby; second, that by force of the second section of the statute of March 11, 1889 (Acts 1889, p. 430); Elliott's Supplement, sections 423-26; Burns' R. S. 1894, sections 2644-47), the deed to Margaret E. Case of September 19, 1884, had the effect, upon the death of Margaret E. Case, to estop the appellees from asserting that they took, as her forced heirs, the one-third interest in the property in controversy, which descended to her as the widow of Jonas Case; third, that the evidence as to the deed of September 19, 1884, having been made for the purpose only of effecting a partition, did not establish such fact.

After the death of Jonas Case, in 1884, intestate, one-third part in value of the real estate of which he died seized descended in fee-simple absolutely to each of the children of his first wife, Frances A. McClain and William H. Case. Section 2622, Burns' R. S. 1894. The remaining one-third descended in fee-simple to his widow, Margaret E. Case, but under a disability personal to herself to make any conveyance of such interest as would prevent the descent at her death to the children of her husband by his first wife. Sections 2483-2487, R. S. 1881; Haskett v. Maxey, 134 Ind. 182, 33 N.E. 358.

On the 19th day of September, when the deed to the property in question from Frances A. McClain and William H. Case was executed, they had full power to convey their absolute title in fee-simple to two-thirds in value of said real estate to any person who was not under disability to receive such conveyance. The widow, Margaret E. Case, was under no disability to take by deed title in fee-simple to such two-thirds interest.

The statute provides that a quit-claim deed, unless limited to a less interest shall pass the entire estate of the grantor as effectually as a deed of bargain and sale. Sections 3343, 3347, 3348, Burns' R. S. 1894 (2924, 2928, 2929, R. S. 1881); Rowe v. Beckett, 30 Ind. 154; Davidson v. Coon, 125 Ind. 497, 502, 9 L. R. A. 584, 25 N.E. 601.

The ordinary effect of such a deed is to convey all the existing interest of the grantor in the land described, and to that extent is as operative as any deed can be. Hastings v. Brooker, 98 Ind. 158, and cases cited.

There is nothing in the deed to the widow to indicate that it was not the intention of the grantors that it should have its full legal effect and vest in her an absolute title in fee-simple to the undivided two-thirds of the real estate described, which the grantors then owned in fee-simple.

It follows that the deed to the widow, Margaret E. Case conveyed to her the undivided two-thirds of the real estate in...