Terry v. Davenport

• Decision Date: 02 June 1916
• Docket Number: No. 22958.,22958.
• Parties: TERRY v. DAVENPORT et al.
• Court: Indiana Supreme Court

185 Ind. 561

112 N.E. 998

TERRY

v.DAVENPORT et al.

No. 22958.

Supreme Court of Indiana.

June 2, 1916.

Appeal from Circuit Court, Pulaski County; Isaiah Conner, Special Judge.

Action to quiet title by John A. Davenport and others against Mary E. Terry, in which she filed a cross-complaint claiming equitable title to portions of the land and seeking recovery of possession thereof. From a judgment for plaintiffs, quieting their title, defendant appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Judgment affirmed.McConnell, Jenkines, Jenkines & Stuart, of Logansport, Milo M. Bruce and Lincoln V. Cravens, both of Hammond, and John G. Reidelbach, of Winamac, for appellant. Ralph E. Horner, Robert E. Thompson, and John M. Spangler, all of Winamac, and Frank E. Gavin, of Indianapolis, for appellees.

MORRIS, J.

Action by appellees to quiet title to certain lands in Pulaski county. Appellant filed a cross-complaint in which she claims an equitable title to portions of the land, based on an alleged constructive trust, and seeks recovery of possession thereof. Appellees answered the cross-complaint with a general denial, and pleas of the 15 and 20 year limitation statutes. Sections 295, 296, Burns 1914.

The land in question was originally owned by John Davenport, who had three children, Albert and Charles Davenport and Ruth Gundrum, all of whom are dead. Appellant is the daughter and only heir of Ruth Gundrum, while appellees are the children and grandchildren of Charles, and claim title as devisees of Albert. The court found the facts specially, and stated its conclusions of law, in favor of appellees, on the issues formed on the complaint and cross-complaint. Appellant excepted to each conclusion. Judgment for appellees, quieting their title. Appellant's motion for a venire de novo and new trial were each overruled. Error is assigned on the conclusions of law, and rulings on the motions. We here set out the substance of the several findings-30-and in some instances the whole thereof.

On July 8, 1861, John Davenport owned, in fee simple, 754 acres of land in Pulaski county and lived on a portion of it. Albert then lived on his father's land in a residence across a highway from that of his father. Ruth Gundrum's husband had died in 1859, and afterwards, until her death in 1888, she lived in her father's residence. Charles moved to Iowa in 1855, where he lived until his death in 1905.

John Davenport's wife was 10 years younger than he. Neither could read or write, and for assistance in business affairs, they depended largely on Albert who was a shrewd, capable, and experienced business man, and they reposed confidence in his honesty. At the time, John owned personalty worth $8,000, but was surety on the bond of a defaulting clerk of the Pulaski circuit court Albert told his parents of the defalcation, and stated that his father would lose all his land if not conveyed to him. At first the parents refused to make a deed, but afterwards Albert promised a reconveyance of the lands after the settlement of the clerk's liabilities, and, relying on the promises and statements, the requested deed was made, conveying all the land to Albert, excepting 40 acres. One hundred and twenty acres of this land, in section 1, township 30, range 2, included the portion on which Albert was then residing, and was afterwards, until his death in 1906, occupied by him as his homestead. For 80 acres of this Albert paid his father the sum of $300, in gold, and for the remaining 40 he paid $400, and, for 10 acres of timber land, in another section, he paid $10 per acre. The deed was recorded on the day of its execution. When the deed was made the father had no knowledge of the facts concerning the clerk's defalcations, but believed the statements, in reference thereto, made by Albert. John's liability on the bond was subsequently discharged in 1863 by the payment of $90. After the execution of the deed of July 8, 1861, John Davenport continued in the possession and control of the land conveyed to Albert. In March, 1862, Albert, with his father's approval, sold and conveyed for $400, to one Parnell 100 acres of the land conveyed by the deed of July 8, 1861, and in 1864 conveyed 2 acres thereof to one Myers.

In October, 1865, Albert reconveyed to his father all the land described in the deed of 1861, excepting 270 acres. The exception included the 120-acre homestead of Albert, and 40 acres adjoining, in section 1, township 30, range 2; also the land conveyed, in the meanwhile, to third parties. The deed also conveyed to John 10 acres, not included in the deed of July 8, 1861. The wife of John died in 1874. On April 14, 1879, John executed a deed to Albert for 130 acres here claimed by appellant, located in sections 2 and 11, township 30, range 2. The deed was recorded, but Albert never claimed title under such deed. On April 14, 1879, John conveyed to Ruth by deed the S. E. 1/4 of N. E. 1/4 and the N. E. 1/4 of the S. E. 1/4 of section 2, township 30, range 2. The description in the deed contained a repetition of the description of the N. E. 1/4 of the S. E. 1/4. The land described in Ruth's deed is not in controversy here.

On January 28, 1869, John Davenport executed his will, by which he bequeathed to his sons Albert and Charles legacies of $300 each, and devised to a foster child 59 acres of land not here in controversy. The remainder of the estate was devised and bequeathed to the daughter Ruth. John died October 6, 1879, and his will was probated three days later.

Findings numbered 13, 14, and 15, on which appellant specially relies, are as follows:

“Thirteenth. That said Ruth Gundrum was a person of mature years and of sound mind, and she and her brothers Albert Davenport and Charles L. Davenport met at the home of said Albert on the 13th day of October, 1879, for the purpose of talking over their respective interests and rights in the estate of John Davenport, they being his only heirs, at which time the said Ruth Gundrum executed a warranty deed to Albert Davenport, the said Charles L. Davenport joining therein for the southeast quarter of the southeast quarter of section two (2), township thirty (30) north, range two (2) west; the north half of the northeast quarter, ten (10) acres off of the north side of the southeast quarter of the northeast quarter of section eleven (11), township thirty (30) north, range two (2) west, containing one hundred and thirty (130) acres more or less, which deed is recorded in Deed Record 28, at page 349, of Pulaski county, Indiana. That Ruth Gundrum, together with Albert Davenport, at the same time executed to Charles L. Davenport, a deed to the southeast quarter of the northeast quarter of section two (2), township thirty (30) north, range two (2) west, in Pulaski county, Indiana, and Albert Davenport and Charles L. Davenport executed their warranty deed to Ruth Gundrum for the northeast quarter of the southeast quarter of section two (2), township thirty (30) north, range two (2) west, which deed was never recorded. Each of which deeds was acknowledged by the respective grantors. Which last described deed is and has been in the possession of the cross-complainant.

Fourteenth. That on the 15th and 16th days of October, 1879, ten days after John Davenport's death, there were recorded in the recorder's office of Pulaski county, Indiana, two warranty deeds purporting to have been executed by John Davenport on the 14th day of April, 1879, which was six months before his death. By one of these deeds, John Davenport conveys to Albert Davenport the same real estate as that described in the deed procured from Ruth Gundrum as set out in the last preceding finding, to wit: The southeast quarter of section two (2); ten acres off of the north side of the southeast quarter of the northeast quarter, and the north half of the northeast quarter of section eleven (11), all in township thirty (30) north, range two (2) west, Pulaski county, Indiana. The second deed of that date, April 14, 1879, conveys to Ruth Gundrum certain real estate described in the language of the deed, as follows: The southeast quarter of the northeast quarter, and the northeast quarter of the southeast of section two (2), township No. thirty (30) north, range two (2) west, containing eighty acres more or less, and the northeast quarter of the southeast quarter of section No. two (2), township No. thirty (30) north, range No. two (2) west, containing forty acres more or less.

John Davenport was then about seventy-nine years of age, growing weak in body and mind, and easily influenced by his son, Albert Davenport. Albert Davenport pretended to his father that he was not able to take care of said real estate, and was in danger of losing it, and that he would take care of it for his father, if he would place the legal title in him, the said Albert Davenport, and that he would convey the same to Ruth Gundrum, upon his father's death pursuant to his father's will. At the time of the execution of these two deeds Albert Davenport knew that by the terms of his father's will Ruth Gundrum was the residuary legatee, and that at his father's death the real estate described in both these deeds would go to Ruth Gundrum, and that his father so intended, and that the deed to Ruth Gundrum contained an erroneous description, and that it was his father's wish that his daughter, Ruth Gundrum, should have the southeast quarter of the southeast quarter of section two (2) west, which was a part of the old homestead, and yet he (Albert Davenport) caused said forty-acre tract to be described in his deed to himself and permitted the deed to Ruth Gundrum to be so erroneously drafted as to create the impression that it conveyed 120 acres, including the old homestead forty, said southeast quarter of the southeast quarter of said section two (2) on which was situated the orchard and cellar, while in fact another forty-acre tract...