Stout v. Rayl

• Decision Date: 04 December 1896
• Parties: STOUT v. RAYL et al.
• Court: Indiana Supreme Court

146 Ind. 379

45 N.E. 515

STOUT

v.RAYL et al.

Supreme Court of Indiana.

Dec. 4, 1896.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by Andrew P. Stout against Mary A. Rayl and others to set aside deeds to defendant Rayl executed by Robert Stout and wife, and to quiet plaintiff's title in an undivided part of the land described in the deeds, as one of the children and heirs of Robert Stout, deceased. From a judgment in favor of defendants, plaintiff appeals.S. D. Stuart and J. F. Neal, for appellant. Christian & Christian and Jesse Hodgin, for appellees.

McCABE, J.

The errors assigned on this appeal call in question the conclusions of law stated on the special finding of facts by the circuit court, and the action of that court in overruling the plaintiff's motion for a new trial. The substance of the special finding is as follows: (1) That Robert Stout died, intestate, on June 18, 1895, leaving, surviving him, as his only heirs at law, the defendant Jemima Stout, his widow, Lucius Stout, Mary Ann Allen, and Andrew P. Stout, his children. (2) That on the 22d day of October, 1881, Robert Stout, by warranty deed, his wife, Jemima, joining therein, conveyed to the defendant Mary Rayl certain described real estate situate in Hamilton county, Ind., containing 60 acres. Said deed was duly acknowledged on said day, before a justice of the peace. That thereafter, on said day, said deed was handed to the defendant Jemima Stout by said Robert Stout, he saying to her: “Take it, and keep it in a safe place until my death; then deliver it to B. F. Wells.” That said Jemima Stout took said deed, and put it in a drawer, which was a safe place, and kept possession of it there, under lock and key, until the death of said Robert Stout, whereupon she delivered said deed to said B. F. Wells. That said deed, on the day of its execution, was put into an envelope by said Robert Stout, and sealed up, and there were indorsed on said envelope the words, “Deeds to be delivered by B. F. Wells after my death;” and there were indorsed on said deed the words, “After my death, this deed to be delivered by B. F. Wells.” That said B. F. Wells, pursuant to the instruction given him by Robert Stout in his lifetime, called for and received said deed after the death of said Robert Stout from the defendant Jemima Stout, and caused the same to be recorded in the deed records of the county; and, after said deed had been so recorded, he delivered it to the defendant Mary Rayl, who accepted the same, and went into possession of said real estate. (3) That on February 9, 1884, said Robert Stout, by warranty deed, his wife, Jemima Stout, joining therein, conveyed to the defendant Mary Rayl certain other described real estate situate in the county of Hamilton and state of Indiana, containing 20 acres, more or less. That said deed was duly acknowledged before a justice. That on said day, after said deed had been duly signed and acknowledged, said Robert Stout handed said deed to the said defendant Jemima Stout, saying to her: “Take it, and keep it in a safe place until after my death; then deliver it to B. F. Wells.” That said Jemima Stout took said deed, and put it in a drawer, which was a safe place, and kept possession of it there, under lock and key, until the death of said Robert Stout. That thereupon she delivered said deed to B. F. Wells. That said deed, on the day of its execution, was put into an envelope, and sealed up, and there was indorsed on said envelope this language, “Deeds to be delivered by B. F. Wells after my death;” and there was indorsed on said deed this language, “To be delivered by B. F. Wells;” and that said B. F. Wells, pursuant to the instructions given him by Robert Stout in his lifetime, called for and received said deed after the death of said Robert Stout, from the defendant Jemima Stout, and had the same recorded in the deed records of the county, and thereafter delivered it to said defendant, Mary Rayl, who accepted the same, and went into possession of said real estate. (4) That said Robert Stout, deceased, at no time after the execution of either of said deeds, and placing them in the hands of said Jemima Stout, ever exercised any control or authority over them, or ever called for them. (5) That said Robert Stout, during his lifetime, exercised full control over said real estate, and received the rents and profits therefrom, and paid the taxes thereon, and that his personal property left by him is sufficient to pay his debts. (5 1/2) That, at the time of signing each of said deeds before said justice, said Robert Stout directed his wife to take charge of them, and not let his body get cold in death before delivering them to B. F. Wells. That she accordingly took sole charge of said deeds, and put them under lock and key in a drawer, where she and said Robert kept their private papers. While he had access to said drawer by obtaining the key from her, he never had or resumed control of said deeds, or the other deeds to his children, but left them in the possession of his said wife. Frequently, prior to his death, and after making said deeds, he had conversations with said B. F. Wells, in which he directed him to deliver the deeds after his death to the grantees; and said Wells did so deliver them, but he never saw or had possession of them until they were delivered to him by Mrs. Stout. (6) That said defendant Mary Rayl, since the death of said Robert Stout, has had possession of said real estate, and paid the taxes thereon, and received the rents and profits therefrom, of the value of $-. (7) That at the same time said first deed was signed and acknowledged by said Robert Stout and Jemima Stout, his wife, to Mary Rayl, said Robert and wife conveyed to plaintiff, Andrew P. Stout, a certain tract of real estate situate in said county and state, and also conveyed to each of the...