Tenbrook v. Brown

• Decision Date: 11 December 1861
• Parties: Tenbrook v. Brown
• Court: Indiana Supreme Court

17 Ind. 410

Tenbrook v. Brown

Supreme Court of Indiana

December 11, 1861

APPEAL from the Parke Common Pleas.

The judgment is affirmed, with costs.

R Maxwell, S. C. Wilson, L. Wallace and J. P. Usher, for the appellant.

J. M Allen, J. G. Crain, J. E. McDonald and A. L. Roache, for the appellee.

OPINION

Worden J.

Suit by Tenbrook against Brown. Judgment for the plaintiff, who appeals in consequence of the smallness of the verdict and judgment.

Tenbrook was one of the heirs and distributees, through his mother, of Samuel Brown, deceased, and the defendant, Brown, was a son of the deceased, and his executor. The complaint sought distribution to the plaintiff of his share of the estate. The controversy in the case grew, mainly, out of the fact that the defendant claimed the most of the personal property, supposed to have been left by the deceased, as having been given to him by the deceased in his lifetime.

We will notice the points relied upon in the brief of counsel for a reversal.

The first is, that the Court erred in overruling a demurrer to a paragraph of the defendant's answer.

The demurrer in question assigned for cause none of the six specified causes of demurrer provided for by statute. It is a common law general demurrer, in the following form:

"Comes now said plaintiff and demurs to the second paragraph of the defendant's answer, and says that the same is not sufficient in law to enable the defendant to sustain his said defense, or to bar the plaintiff's complaint."

In Lane v. The State, 7 Ind. 426, the Court held substantially such a demurrer to be bad, and that it should have been overruled, as not in compliance with the statute. Following that decision, we hold that no error was committed in overruling the demurrer, without examining the sufficiency of the pleading to which it was filed.

At the proper time, the plaintiff asked the following instructions to the jury, viz.,

"4. That if the jury believe from the evidence that the property claimed as a gift by the defendant, was in the possession of the defendant as agent or manager for defendant's father, before the time the gift is claimed to have been made, and no apparent change of ownership or control had taken place after that time, there is no valid gift." This charge was refused as asked, but given, striking out the words, "there is no valid gift," and adding, "it is evidence tending to prove that there had been no gift."

"5. That if the jury believe from the evidence that the relation of parent and child existed between the donee and Samuel Brown, Sr., it is the duty of the jury to weigh well, and scrutinize closely, any facts in evidence tending to show any undue influence, or improper exercise of authority, over the donor; and if the defendant has taken a gift under such circumstances from his father, the proof lies upon the defendant to show that he has dealt fairly with his father, as with a stranger, taking no advantage of his influence or knowledge."

This charge was given as asked, with a slight alteration of phraseology, not affecting the substance, in this: instead of saying, "if the defendant has taken a gift under such circumstances," it was made to read, "if the defendant has taken a gift under undue influence, or improper exercise of authority," &c. The Court also added to the charge the following words: "but unfair dealing by the son is not to be presumed because the relation of father and son exists. The burden of proof of undue influence, or unfair dealing, is on the plaintiff."

We are of opinion that the fourth charge, as asked, was properly refused; and that as given, it was as favorable to the plaintiff as he could legally claim.

There can be no doubt that delivery is necessary to pass the title to a chattel by gift. Chancellor Kent says on this subject, "Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundam subjectum materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part, not only with the possession, but with the dominion of the property." 2 Kent's Com., 3d Ed., p. 438.

Now, it seems clear enough that if the property in question was in the possession of the defendant, as agent or manager for his father, at the time of the gift, still, his father might execute to him a valid gift of the property while thus in his possession. The law clearly would not require, in such case that the defendant should first surrender his actual possession to his father, in order that his father might redeliver the property to him in execution of the gift. It would seem that in such case the gift would be complete, if the father bestowed the property upon the...