Vaughan v. Godman

• Decision Date: 06 November 1885
• Docket Number: 12,113
• Citation: 3 N.E. 257,103 Ind. 499
• Parties: Vaughan v. Godman et al
• Court: Indiana Supreme Court

3 N.E. 257

103 Ind. 499

Vaughan v. Godman et al

No. 12,113

Supreme Court of Indiana

November 6, 1885

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

W. C Wilson, J. H. Adams, J. A. Wilstach and J. N. Wilstach, for appellant.

J. R Coffroth, H. W. Chase and F. S. Chase, for appellees.

OPINION

Zollars, J.

We copy from the opinion rendered in this cause upon a former appeal and reported as Vaughan v. Godman, 94 Ind. 191, the following summary of appellant's complaint:

"Appellant was the owner of parts of two lots in the city of Lafayette, which he acquired by purchase and deeds--one in the year 1864 and one in 1865. This property was bought for a family residence, was paid for by appellant out of his earnings, and constituted the whole of his property. In 1859 appellant married Mrs. Shay; she did not at that time, nor did she at any time thereafter, own any property. Appellee Catharine was born in 1861; when she was five years old a brother of the mother's deceased husband threatened to sue appellant for a debt of $ 500, due him from the deceased husband, which appellant had never, in any manner, obligated himself to pay. At this juncture appellant consulted a distinguished lawyer, and upon his advice, as stated in the complaint, appellant and his wife 'conveyed both said pieces of real estate to their said daughter, said defendant Catharine Vaughan, in order that the said plaintiff and his wife might not be molested with a lawsuit, and that the property might be preserved in the family, without expense of a litigation, by a deed dated October 19th, 1867, without any consideration, except the purpose of preserving the property, and for the expressed consideration of one dollar.' The averments of the complaint in relation to the delivery of the deed are as follows: 'Plaintiff further avers, * * * that said Catharine Vaughan, at the date of said deed, was only of the age of five years; that said deed was never delivered to her; * * * that this plaintiff, without any knowledge on the part of said Catharine Vaughan, took said deed, on the 21st day of October, 1867, to the office of the recorder of said county, and procured and paid for the recording of the same, and on or about the 1st day of November, 1867, obtained the same again from said recorder, and placed the same with his own papers, where it has ever since remained, and has never left his possession, nor been in the possession of said Catharine Vaughan, nor any other person except this plaintiff and his counsel. And the plaintiff further says and expressly avers, that said deed to said Catharine Vaughan was never delivered to her, nor to any person or persons for her; she had no knowledge whatever of said deed at the time it was signed, nor for more than twelve years thereafter, and the title was never accepted by her, nor possession taken by her, nor by any person for her (except the recent possession of said guardian appointed December 29th, 1880, be accounted such possession).' It is further made to appear by the complaint that appellant occupied the property as a family residence until the death of his wife, and for some time thereafter, and remained in the possession until the appointment of the guardian for Catharine in 1880, paid the taxes, made improvements, collected the rents, etc."

The prayer of the complaint is that the deed be declared to be a nullity and be cancelled and held for naught, and that a commissioner be appointed to convey the real estate to the plaintiff, Vaughan. Since the action was commenced, the daughter's name has been changed by marriage.

Citing Taylor v. McClure, 28 Ind. 39, Somers v. Pumphrey, 24 Ind. 231, Mallett v. Page, 8 Ind. 364, Tallman v. Cooke, 39 Iowa 402, and 3 Washb. Real Prop. (4th ed.) 284, we held upon the former appeal, that a deed may be delivered by the grantor having it recorded, if his purpose in so doing is to effectuate a delivery.

Citing the above authorities, and the cases of Hotchkiss v. Olmstead, 37 Ind. 74, Berry v. Anderson, 22 Ind. 36, Thatcher v. St. Andrew's Church, 37 Mich. 264, Jones v. Swayze, 42 N.J.L. 279, Gilbert v. North American Fire Ins. Co., 23 Wend. 43, Byars v. Spencer, 101 Ill. 429, and Martindale Law of Conv., sections 204, 206, 212 and 222, it was further held that if a deed is recorded by the procurement of the grantor, that is, prima facie, a delivery, especially when the conveyance is to a minor; that this prima facie case may be overthrown by evidence; that the question of delivery is one of fact to be determined upon the evidence; that in all disputes as to whether or not a deed has been delivered, the important inquiry is to ascertain the intent of the grantor in the act, or several acts, which it may be claimed constitute a delivery; that in such inquiry the question is, did he intend to divest himself of title and lodge it in the grantee? And, again, citing some of the above authorities, and Cecil v. Beaver, 28 Iowa 241 (4 Am. Rep. 174), Spencer v. Carr, 45 N.Y. 406 (6 Am. Rep. 112), Guard v. Bradley, 7 Ind. 600, Squires v. Summers, 85 Ind. 252, Bryan v. Wash, 7 Ill. 557, Reed v. Douthit, 62 Ill. 348, Rivard v. Walker, 39 Ill. 413, and 3 Washb. Real Prop. (4th ed.), p. 284, it was held that where the grant is to a child, by way of a gift, and is beneficial in effect, acceptance of the deed will be presumed, although the deed may be retained in the possession of the grantor.

In accordance with the holdings above stated, it was further held, reversing the judgment, that disregarding some of the averments in the complaint, because they are statements of evidentiary facts, rather than of the ultimate fact, the repeated allegation, that the deed was not delivered, rendered the complaint good as against the demurrer directed against it, although the grantor had caused the deed to be recorded. These rulings are supported by the subsequent cases of Jones v. Loveless, 99 Ind. 317, Fitzgerald v. Goff, 99 Ind. 28, and Bremmerman v. Jennings, 101 Ind. 253.

Since the reversal upon the former appeal, the case has been tried below; the relief asked by appellant was denied, and judgment was rendered against him for costs. The overruling of appellant's motion for a new trial is the only assigned error. That motion raises the single question of the sufficiency of the evidence to sustain the finding and judgment of the trial court. That appellant is the father of appellee, Catharine Godman; that in October, 1867, without any money consideration, he and his then living wife, who was her mother, signed and acknowledged a deed, which upon its face is a deed of conveyance in fee simple to said appellee of the real estate in dispute; that appellant shortly thereafter caused the deed to be recorded; that at that time appellee was about six and one-half years old, and lived with her parents, are facts about which there is no dispute.

Upon these undisputed facts the following presumptions, if none other, arise:

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