Stonehill v. Swartz

Decision Date09 October 1891
Docket Number14,653
Citation28 N.E. 620,129 Ind. 310
PartiesStonehill, Executor, et al. v. Swartz et al
CourtIndiana Supreme Court

From the Newton Circuit Court.

The judgment is reversed, with instructions to restate conclusions of law, to the effect that the appellees take nothing by this action, and that appellants are entitled to recover their costs, and to render judgment in favor of the appellants, reserving to the appellees their rights under the will of John Sell, deceased.

J. S Saunderson, F. A. Comparet, E. P. Hammond and W. B. Austin for appellants.

S. P Thompson, for appellees.

OPINION

Olds, J.

The appellees, Sarah C. Swartz and Julia A. Knouff, brought this suit in the court below, against the appellants and their co-appellees, to establish and enforce an alleged trust in certain real estate situate in Newton county, Indiana, to which John Sell had the legal title, and had been in possession of for more than twenty years prior to his death and asking to have their title to the same quieted. The complaint was in three paragraphs. Demurrers were sustained to the second and third, and overruled as to the first. Appellants answered in ten paragraphs,--the first a general denial, and the others were affirmative answers, pleading the statute of frauds of Ohio against the verbal contract between Jacob and John Sell, whereby an alleged trust was created, setting up the fifteen years' statute of limitations against part of the complaint which sought to enforce the trust against the lands situate in Indiana, and sold by the deceased in his lifetime, pleading an estoppel against the recovery for the lands sold by the executor, and setting up an election by appellees to take under the will, and also a family settlement whereby they were estopped from asserting the claims set forth in their complaint. A demurrer was sustained as to the second paragraph of answer.

The plaintiffs below filed a reply in four paragraphs.

There was a trial by the court, and a special finding of facts and conclusions of law stated by the court, to which conclusions of law appellants jointly and severally excepted. Exceptions were also reserved to the rulings of the court on demurrers.

Motions were made by the appellants to require the court to restate its conclusions of law, for judgment in their favor on facts found, for a new trial, for venire de novo, and in arrest of judgment; all of which motions were overruled and exceptions reserved. Errors are properly assigned on the several rulings of the court.

The principal discussion by counsel for the appellants relates to the sufficiency of the facts found to sustain the conclusions of law stated by the court, and the judgment rendered in pursuance therewith.

So much of the finding of facts as are material for the decision of the case are as follows:

"1. That said decedent, John Sell, was married twice. His first wife, Lydia Sell, to whom he was married about 1835, was the daughter of Jacob Sell, of Adams county, Pennsylvania. Said Lydia died about 1848, leaving surviving her her said husband John Sell, and three children by said John Sell, to wit: The plaintiff, Sarah C., who was married to John H. Swartz in 1860, and divorced from him in 1874; also the plaintiff Julia A., who is the wife of John Knouff; and also Susan, who died in 1858, at the age of about eleven years. Said Sarah C. Swartz was born in 1837. Said Julia A. Knouff was born in 1842. The second wife of said decedent, John Sell, was the defendant Elizabeth Sell, to whom he was married about 1848, and who is the widow of said decedent, her age, at this time, being 74 years. The children of said John Sell, by his second wife, are the defendants, Mary J., who is the wife of the defendant Philip Stonehill, and Emma R., who is the wife of the defendant Alexander G. Geizelman. Said Mary J. was born in 1849. Said Emma R. was born in 1853. The defendants Clara and Sherman Swartz, and Lilly Maloney, married to the defendant George Maloney, are children of the plaintiff Sarah C. Swartz by said John H. Swartz. Said Jacob Sell, the father of said John Sell's first wife Lydia, died at his residence in Adams county, Pennsylvania, in 1855. Said John Sell died in said Newton county, where he had resided over seventeen years, on the 14th day of January, 1886.

"2. Said Jacob Sell, on October 3, 1805, became the owner by patent from the United States, of the southeast quarter of section eleven, township eleven, range eight, in Starke county, Ohio. Soon after said John Sell, who then resided in Adams county, Pennsylvania, married said Lydia, said Jacob told said John that if he, said John, would move to Starke county, Ohio, and settle upon said land that he would some day convey the same to said Lydia, it being said Jacob's intention to convey her said land as an advancement. Said John and his wife, said Lydia, moved to and located upon said land, pursuant to said promise, and were residing there at the time of her death. Said John continued to live on said land for many years after his second marriage, making the same a home for himself and family. Said Lydia died without having received any conveyance of said land. Having failed to convey said real estate to said Lydia, and still holding the title thereto, said Jacob Sell on the 16th day of October, 1854, conveyed said real estate by deed, with full covenants of title, to said John Sell, his heirs and assigns forever."

"The consideration expressed in said deed was twenty-one hundred dollars, but nothing in fact was paid by said John to said Jacob for said real estate, the conveyance being made to him from the fact of said Jacob's intention to have conveyed said real estate to said Lydia as an advancement, and it being conveyed to said John because of said Jacob's failure to convey to said Lydia during her lifetime.

"3. At the time of executing said deed said John, who, with his family, had been residing on said land many years, was on a visit to Adams county, Pennsylvania. Said Jacob said to him 'John, you go back to Starke county, Ohio, and improve that land' (referring to the land described in said deed) 'for your own convenience and comfort. Lydia' (referring to said John's deceased wife) 'always spoke well of you. I don't want to deprive you of a home. I will give you that land with the understanding that you are to have the use of it during your life, and at your death it is to go to Lydia's children' (referring to said plaintiffs and to their said sister Susan). Said John then verbally agreed with said Jacob to accept a conveyance of said real estate upon said conditions, and said deed was then executed; the said contemporaneous verbal understanding, between said Jacob and said John, being that said John was to have an estate in said land during his (said John's) life, and that at his death, said real estate should go to the children of said Lydia. There was nothing said as to what was to be done to effectuate a conveyance of said real estate to said children at said John's death, except that said John was to see that Lydia's children got the land at his death. There was no writing whatever pertaining to said verbal understanding. Prior to said transaction, said Jacob had executed a will devising said real estate to said Lydia's children, but upon said John agreeing to accept said conveyance upon said verbal conditions, and at the time of executing said deed, said Jacob destroyed said will. Said John remained on said land for many years after the execution of said deed to him by said Jacob, making it a home for himself and family. His said family, at the time of said conveyance, consisted of his three children by his first marriage, his second wife, and his said two children by his second wife, all of whom were residing with him upon said land.

"On February 3d, 1865, said John Sell and his wife, said Elizabeth Sell, conveyed by warranty deed to Mary Bard, wife of Samuel Bard, said real estate in Starke county, Ohio, except seventeen and 30/100 acres, previously conveyed to other persons, which deed to said Mary Bard was duly recorded on October 20th, 1865. The consideration as expressed in said deed was ten thousand dollars.

"On October 11th, 1864, said Samuel Bard conveyed to said John Sell, by quitclaim deed, the following real estate in Newton county, Indiana, to wit: That fraction lying on the south side of the Iroquois river of S. E. qr. of S. E. qr., sec 25, containing five and 80/100 acres; also the fraction lying on the south side of said river in S.W. qr. of S. E. qr., sec. 25, containing two acres; all in township 28, range 9. October 11th, 1864, said Samuel Bard and wife conveyed to John Sell, by warranty deed, the following real estate in said county of Newton, to wit: The S. E. qr. of the N. E. qr., sec. 36; lot one (1) of said section in township 28, range 9, also E. 1/2 of S.W. qr. and N.W. qr. of S. E. qr. of sec. 19, and N.W. qr. of sec. 31, and S. part of S.W. qr. of sec. 30, being all that part lying south of Iroquois river, all in township 28 north, of range 8 west, containing 340 acres. Both of said deeds were duly recorded. The consideration as expressed in the first of said deeds from said Bard and wife was $ 168. The consideration as expressed in the second of said deeds was $ 7,200. Said deeds were in fact executed by said Bard and wife to said John Sell in a trade for said real estate in Ohio. In said trade said land in Ohio was estimated as being of the value of twenty-six hundred and thirty-two dollars more than said land in Newton county, Indiana, and in payment of this amount, and also in consideration of the further sum of $ 1,168 which said John Sell paid to said Bard, said Bard and his wife, on February 10th, 1865, conveyed by warranty deed to...

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