Sodders v. Jackson

• Decision Date: 20 October 1942
• Docket Number: 16933.
• Citation: 44 N.E.2d 310,112 Ind.App. 179
• Parties: SODDERS et al. v. JACKSON.
• Court: Indiana Appellate Court

44 N.E.2d 310

112 Ind.App. 179

SODDERS et al. v. JACKSON.

No. 16933.

Appellate Court of Indiana, in Banc.

October 20, 1942

[Copyrighted Material Omitted]

Roscoe D. Wheat, of Portland, O. E. Whittinghill, of Redkey, and Charles E. Schwartz and Wayne Hinkle, both of Portland, for appellants.

Moran & Abromson, of Portland, for appellee.

BEDWELL Judge.

The appellant, James O. Sodders, administrator of the estate of Newton L. Jackson, deceased, filed, in the court below, a petition to sell two separate tracts of real estate alleged to be the property of his decedent for the purpose of paying debts, and made his co-appellants, Union State Bank of Redkey, Indiana, and Margaret Jackson, and the appellee Lloyd L. Jackson, parties defendant.

The appellant, Union State Bank of Redkey, Indiana, claimed to be the holder of a mortgage upon the particular real estate, and the appellant, Margaret Jackson, who was the widow and a second childless wife of the deceased, claimed a statutory lien thereon as such widow. The appellee was a son of the decedent by a former marriage and he claimed to be the owner in fee simple of the real estate by virtue of certain deeds executed between himself and the decedent after the death of his mother and before the marriage of the decedent to the appellant, Margaret Jackson.

There was a trial by the court which made a special finding of facts and stated conclusions of law thereon favorable to the appellee. These conclusions of law were to the effect that the appellee was the owner in fee simple of the real estate in question, free of the right of the administrator to sell the same to pay debts and free of any claims of lien thereon or interest therein by the Union State Bank of Redkey Indiana, or Margaret Jackson.

The appellants, James O. Sodders and Union State Bank, filed separate motions for a new trial which were overruled, and they have appealed and assigned as error that the trial court erred in each of its conclusions of law and in the overruling of their separate motions for a new trial.

The facts shown by the special finding are in substance as follows:

Laura B. Jackson, the first wife of the decedent and the mother of the appellee, died intestate on January 3, 1928, the owner of the real estate here involved which consisted of two tracts, one of 58.85 acres and the other of 10.5 acres. Upon her death ownership of one-third of each tract passed to her husband, Newton L. Jackson, the decedent herein, and the other two-thirds thereof to her son, Lloyd L. Jackson, the appellee herein.

On January 6, 1931, Lloyd L. Jackson and his wife conveyed by two separate quitclaim deeds the two tracts of real estate to the decedent, and on the same date the decedent by two separate warranty deeds reconveyed the two tracts to Lloyd L. Jackson, but reserved therein a life estate for himself during the period of his natural life. These four deeds, properly acknowledged, were deposited for record in the office of the Recorder of Jay County, Indiana, at 3 o'clock p. m. on January 6, 1931, and were then recorded in Deed Record 79 at pages 516 and 517. When the recorder entered the same of record he recorded the four deeds in the following order: First, the warranty deed from Newton L. Jackson, father, to Lloyd L. Jackson, son, conveying 58.85 acres; second, the quitclaim deed from Lloyd L. Jackson, son, to Newton L. Jackson, father, conveying 58.85 acres; third, the warranty deed from Newton L. Jackson, father, to Lloyd L. Jackson, son, conveying the 10.5 acres; fourth, the quitclaim deed from Lloyd L. Jackson, son, to Newton L. Jackson, father, conveying the tract of 10.5 acres.

It was the intention of the father and son in the execution and recording of these deeds that the father should relinquish his one-third interest in the real estate in order to acquire the immediate possession and the right to occupy the entire premises during his natural life, and that the son should relinquish his right of possession to an undivided two-thirds interest therein during the life of his father so that at the death of his father he would own in fee simple all of the real estate left by his mother.

After the making and recording of such deeds the decedent married the appellant, Margaret Jackson, and on April 17, 1940, the decedent and Margaret Jackson executed to the appellant, Union State Bank of Redkey, Indiana, a mortgage upon all of the real estate to secure a preexisting indebtedness. The appellee, Lloyd L. Jackson, did not join in this mortgage and there is no evidence that he had any knowledge thereof when it was executed.

The appellee attacks the sufficiency of appellants' brief to present any questions for determination. It is true that in appellants' statement of the record, and in that portion thereof which contains a condensed recital of the evidence in narrative form, that counsel, in certain instances, have stated their own conclusions as to the contents of certain documentary evidence instead of setting forth literally, or in substance, the contents thereof. This is not in compliance with the rules of the Supreme Court. Cleveland, etc., R. Co. v. Snow, 1906, 37 Ind.App. 646, 651, 74 N.E. 908; Dillon v. State, 1911, 48 Ind.App. 495, 496, 96 N.E. 171; Huffman v. Thompson, 1912, 177 Ind. 366, 98 N.E. 113; Carmody v. State, 1912, 178 Ind. 158, 98 N.E. 870.

The appellee also attacks that portion of appellants' brief which falls under the heading of "Propositions and Authorities", and contends that they have not complied with Rule 2-17 in its preparation. It is also true that this portion of the brief in many respects fails to comply with the rules that govern this court. Appellants treat the alleged error in each of the five conclusions of law together, and wholly fail to specifically point out, by any point, any particular error in any particular conclusion of law. The points are numbered but they consist of separate statements of fact or of general propositions of law, and neither these statements of facts or these propositions of law are connected with any particular error in the conclusions of law. Appellants' points under their treatment of errors in the conclusions of law consist in the main of statements of fact, or statements of law bearing upon the sufficiency of the evidence. An exception to conclusions of law raises no question concerning the evidence. An exception to conclusions of law admits that the facts, within the issues, have been correctly and fully found and admits that the findings are supported by evidence. State ex rel. v. Richey, 1930, 202 Ind. 116, 172 N.E. 119.

But under that portion of their "Propositions and Authorities" which treats of error in the overruling of the motions for a new trial, the appellants have substantially complied with the rules governing this court so as to present the question of the sufficiency of the evidence to sustain the special finding of facts. They contend that there was no evidence that the deeds signed, acknowledged, and recorded on January 6, 1931, were delivered. There was no proof of possession of the deeds after recording and no proof of who presented the deeds to the recorder for recording. The trial court found in its special finding that these deeds were executed, and execution includes, as a necessary and essential incident, their delivery. This is so because there cannot be an execution of a deed without an actual or constructive delivery. Colee v. Colee, 1889, 122 Ind. 109, 23 N.E. 687, 688, 17 Am.St.Rep. 345. In this case Judge Mitchell, in discussing the sufficiency of the evidence to show delivery of the deed therein involved, said:

"As a general proposition, the making a voluntary conveyance absolute in form, and beneficial in effect, by a father or mother, to one who is not sui juris, and placing it upon record, although possibly not effectual without more, as a delivery and acceptance between adults, is deemed to evince an unmistakable intention on the part of the grantor to give the deed effect, and pass the title to the grantee; the assent of the latter, if nothing further appears, being presumed from the

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