Stewart v. Weed
| Decision Date | 23 November 1858 |
| Citation | 11 Ind. 76 |
| Parties | Stewart v. Weed |
| Court | Indiana Supreme Court |
From the Rush Circuit Court.
P. A Hackleman, S.W. Parker and J. McIntosh, for appellant.
A. W Hubbard, L. Sexton, J. Ryman and G. C. Clark, for appellee.
Stewart, who was the plaintiff brought an action against Weed for the recovery of a tract of land in Rush county. Issues being made, the Court tried the cause, and found for the plaintiff; and having refused a new trial, rendered judgment, &c.
The facts of this case are substantially these: In the year 1854, Weed, the defendant, intermarried with the plaintiff's daughter. And in January, 1855, the plaintiff bought the land in dispute of one Jacob Andrews for 3,600 dollars, paid the purchase-money, and on the same day, Andrews, by deed in fee, conveyed the land to Margaret C. Weed, the plaintiff's daughter and the defendant's wife. When the magistrate by whom the deed was drawn, and before whom it was acknowledged, was writing it, the plaintiff, in an under tone, directed the magistrate to fill it up in the name of Margaret C. Weed. The deed was executed in the plaintiff's house. It concludes with these words: "Signed, sealed, and delivered in the presence of." The defendant was present in the same room during its execution-- was silent, but near enough to hear the plaintiff's directions as to how the deed should be filled up. Whether or not he did hear them, is not directly shown. When the deed was executed and acknowledged, it was delivered to the plaintiff. Andrews, when he gave the deed into the hands of the plaintiff, intended to part with it, finally, and from that time forward never claimed to have any interest in the land, except a mere right of possession, pursuant to agreement, until the first of March following. The defendant and his wife, from the time of their marriage until March, 1855, lived with the plaintiff. During that month they moved on the land in question, where they remained, improving and cultivating it, until August in the same year, when Mrs. Weed, having taken ill, they returned to the plaintiff's residence. On the first of September following their return, she died, leaving one child, the issue of her marriage with the defendant, who survived its mother but a few weeks. Defendant, by himself and tenants, occupied the land, claiming it as his own, from the time he moved on to it, in March, 1855, until the trial of this cause--except two months in the spring of 1856. During these months, it was occupied by one Gosnel, as tenant of the plaintiff. Gosnel was ejected by suit instituted by a tenant of the defendant. The deed remained in the possession of the plaintiff unrecorded, until after the death of Mrs. Weed and her child, when he took the deed to Andrews, the grantor, and requested him to cancel it. Andrews tore the signatures and seals of himself and wife from the deed, and afterwards, on the first of October, 1855, made and delivered another deed for the same land, directly to the plaintiff. This was done without the consent or knowledge of the defendant. The plaintiff, under his deed of October 1, claims title to the land in controversy.
The case made by the evidence at once leads to the inquiry whether the conveyance to ...
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