Tinder v. Tinder

• Decision Date: 21 April 1892
• Docket Number: 15,763
• Citation: 30 N.E. 1077,131 Ind. 381
• Parties: Tinder v. Tinder et al
• Court: Indiana Supreme Court

30 N.E. 1077

131 Ind. 381

Tinder v. Tinder et al

No. 15,763

Supreme Court of Indiana

April 21, 1892

From the Fountain Circuit Court.

Judgment affirmed.

H. H Dochterman, for appellant.

C. M McCabe and J. Bingham, for appellees.

OPINION

Elliott, C. J.

Woodruff Beals was the owner and in possession of the land here the subject of controversy on the 9th day of June, 1868, and on that day he and his wife executed a warranty deed wherein the grantees were described as "Sarah A. Tinder and the heirs of Simeon Tinder by Sarah A. Tinder his wife." Simeon Tinder and his wife were living at the time the deed was executed. James Tinder, Lewis Tinder, David Tinder, Joseph Tinder and Mary Tinder were his children by his wife Sarah A. Tinder, and were then living. On the 4th day of October, 1884, James Hendy and Sampson Reed recovered a judgment against David Tinder and Sarah A. Tinder, and on this judgment a sale of the land was made by the sheriff to Reed, who assigned the certificate of the sheriff to Charles E. Bove and John B. Schwin, to whom a deed was executed. The land was of the value of twelve hundred dollars, and was sold by the sheriff for sixty-eight dollars. On the 6th day of June, 1887, Bove and Schwin conveyed the land by a deed of quitclaim to Lewis Tinder. On the 15th day of September, 1886, David Tinder brought suit against Bove and Schwin to quiet title to an undivided one-fourth interest in the land, but judgment was rendered against him. The claim of David Tinder on the action named was founded upon the deed executed by Woodruff Beals, and the title asserted by Bove and Schwin was based upon the deed executed to them by the sheriff. The facts, of which we have given a synopsis, are set forth in a special finding of facts upon which the trial court stated conclusions of law adverse to the appellant. The controlling conclusions stated are these: "1st. The deed to Sarah Tinder would not at common law have created an estate tail for the reason that the entail is not to her heirs, but to the heirs of one who is not a grantee. 2d. The word heirs on the said deed was used in the sense of children, and the conveyance operated to a person named and a designated class of persons whose identity could be established and conveyed them equal shares in the land. 3d. Lewis Tinder is the owner of one undivided half of the land, and is entitled to have his title quieted thereto."

The theory of the appellant, Lewis Tinder, is that he is the owner of all the land, and as such was entitled to a decree quieting his title.

The theory is by counsel asserted to be sound upon the ground that Sarah A. Tinder is the sole legal grantee in the deed executed by Woodruff Beals, and that the sheriff's sale upon the judgment against her vested title in the appellant's grantors, the purchasers at the sheriff's sale, Bove and Schwin. If it be true, as counsel assert, that the deed did vest the whole estate in Sarah A. Tinder, then the conclusion is valid. The pivotal question, therefore, is, did the deed convey to Sarah A. Tinder the entire estate in the land to the exclusion of the children of Simeon Tinder by her?

There are authorities which lend support to the doctrine that a conveyance of land, describing the grantees as the heirs of a person named, is ineffective. The doctrine is placed upon the rule of the common law that a person can not have heirs during life, but, as shown in Huss v. Stephens, 51 Pa. 282, and in Stephens v. Huss, 54 Pa. 20, the rule does not apply where registry stands in the place of livery of seisin. The whole series of cases in America seems to rest on the case of Hall v. Leonard, 1 Pick. 27, and that case, as declared in Huss v. Stephens, supra, was not well decided. It is possibly true that this court is committed to the doctrine of Hall v. Leonard, supra, for it has been approved by our decisions. Winslow v. Winslow, 52 Ind. 8; Outland v. Bowen, 115 Ind. 150, 17 N.E. 281. But while it may be true that we are committed to the rule stated, it is also true that the court has manifested a purpose to restrict rather than enlarge its operation. Lyles v. Lescher, 108 Ind. 382, 9 N.E. 365. The rule is the product of an adherence to a dry technical doctrine that often defeats the clear intention of a testator or grantor, and seldom gives it effect. It generally produces injustice, since it often sacrifices substantial rights to fancied consistency or useless fiction. The rigid adherence to the meaning ascribed by law writers to the term "heir" or "heirs," has resulted in giving many instruments a meaning very different from that intended by their framers. It is not only the unlearned who use the term "heirs" as meaning "children," for the greatest of literary men often and often use the term as meaning children. And so do the courts. Griswold v. Hicks, 132 Ill. 494 (22 Am. St. Rep. 549, 24 N.E. 63); Ridgeway v. Lanphear, 99 Ind. 251; Hull v. Beals, 23 Ind. 25; Star, etc., Co. v. Morey, 108 Mass. 570; Urich's Appeal, 86 Pa. 386 (27 Am. Rep. 707); King v. Beck, 15 Ohio 559; Scott v. Guernsey, 48 N.Y. 106. We think the rule is not one to be applied except in cases falling bodily within its operation. We do not regard the case before us as within the rule, even upon the concession that the rule certainly exists, and is a general one. We think the case falls within the wide and sensible general rule that the intention of a grantor will be sought, and, if discovered, carried into effect.

The plain meaning of the grantor was that the children of Sarah A. Tinder and Simeon Tinder should take the land, since "the heirs of Simeon Tinder by Sarah A. Tinder, his wife," could be no others than their children. There could be no line of descendants, because the heirs meant by the grantor must be the particular class designated in the deed, namely, the heirs of Simeon Tinder by his wife, Sarah. The deed refers to a class and not to possible descendants. If the grantor had intended to vest the entire estate in Sarah A. Tinder, the superadded words, "and the heirs of Simeon Tinder by Sarah A. Tinder, his wife," would not have been employed, since without them the deed would, under our statute, have vested the whole estate in her. The courts have no right to arbitrarily and causelessly reject the words of a deed. Shimer v. Mann, 99 Ind. 190. Words written in a deed are to be given effect, unless there is sufficient reason for disregarding them. Essick v. Caple, ante, p. 207. There is here no such reason. The words employed by the grantor can be given full effect and his obvious intention carried into effect by adjudging that the deed conveys the land to Sarah A. Tinder and her children by Simeon Tinder. In so adjudging we do no more than give effect to a very old rule of the law, one remounting to the case of Burchett v. Durdant, 2 Vent. 313. The rule has been approved by our own and other courts. Shimer v. Mann, supra; Vanorsdall v. Van Devanter, 51 Barb. 137; Heard v. Horton, 1 Denio, 165; Jack v. Fetherston, 9 Bligh, 237; Darbison v. Beaumont, 1 P. Wms. 229. We adhere to a long settled rule, and give just effect to the deed by adjudging that the words "heirs of Simeon Tinder by Sarah A. Tinder, his wife," are descriptive of a class, and mean the children of the persons named, and not an indefinite line of descendants. Our own decisions clearly affirm that the word "heirs" may often be taken as descriptive of a class who shall take directly from the grantor. Conger v. Lowe, 124 Ind. 368, 24 N.E. 889; Underwood v. Robbins, 117 Ind. 308, 20 N.E. 230; Millett v. Ford, 109 Ind. 159, 8 N.E. 917; Brown v. Harmon, 73 Ind. 412; Rapp v. Matthis, 35 Ind. 322; Rusing v. Rusing, 25 Ind. 63; Jones v. Miller, 13 Ind. 337. In the deed we are considering there is manifested an intention that the land shall pass directly out of the grantor into the designated grantees, and there is nothing warranting the inference that the descendants of the grantor or grantees shall take remotely or indirectly. The estate, it is obvious, was intended to leave the grantor and vest directly and immediately in the grantees.

The case before us is easily discriminated from one wherein the grantor attempts to create a particular estate and limit a remainder over. The attempt here was to vest in Sarah A Tinder and "the heirs of Simeon Tinder by Sarah A. Tinder, his wife," the whole estate, and to vest it immediately. ...