Warner v. Marshall
| Decision Date | 06 October 1905 |
| Docket Number | 20,433 |
| Citation | 75 N.E. 582,166 Ind. 88 |
| Parties | Warner v. Marshall et al |
| Court | Indiana Supreme Court |
Rehearing Denied February 14, 1906.
From Vigo Circuit Court; Jere West, Special Judge.
Suit by Sarah G. Warner against Buena V. Marshall and others. From a decree for less than prayed, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed, and decree directed for appellant.
R. B Stimson and A. C. Harris, for appellant.
John G Williams, Buena V. Marshall and Lamb, Beasley & Sawyer, for appellees.
Suit by appellant to enforce specific performance of an alleged contract for the conveyance of real estate, and to quiet title. The property involved consists of the south three-fourths of the east half of out-lot sixteen of the town (now city) of Terre Haute. The land has a frontage on Fifth street extending north from Eagle street a distance of two hundred twenty-five feet and nine inches. The court below made special findings, and stated a conclusion of law in appellant's favor as to the south sixty-six feet of said property. As to the balance of said property, the court's conclusion was adverse to her.
The question is before us as to the correctness of the latter conclusion, and we are also called on to determine whether, under the evidence, appellant was entitled to such findings as would have required the stating of a conclusion of law in her favor as to the entire property.
It is insisted by appellees' counsel that the question of the application of a description of land to its subject-matter is one of fact, and that the findings do not show that appellant was entitled to any more of the real estate than was awarded to her. Counsel for appellees are correct in their first proposition (1 Jones, Real Prop. in Conveyancing, § 339; Steigleder v. Marshall [1893], 159 Pa. 77, 28 A. 240), and, as it does not appear that the findings contain the entire negotiation and correspondence relative to said real estate, we hold that appellant is not entitled to complain of a conclusion of law in appellees' favor as to the remainder of the property.
Before passing to the question of the evidence we are required to consider the contention of appellees' counsel that the evidence is not in the record. This contention is based on the fact that it appears that the general bill of exceptions was filed three days after it was signed, and that the date of the filing was not within the time allowed by the court. Under the present practice it is not only the duty of the court or judge to sign the bill, but to "cause it to be filed." It was held in La Rose v. Logansport Nat. Bank (1885), 102 Ind. 332, 1 N.E. 805, upon a state of facts in regard to a bill substantially similar to that which is here involved, that the evidence was not in the record; but this holding was condemned in Robinson v. Anderson (1886), 106 Ind. 152, 6 N.E. 12, as involving too narrow a construction of the statute. Mitchell, J., speaking for the court, said: "When a party objecting has presented his bill of exceptions in proper form, within the time allowed, he has complied with the letter and spirit of the statute, and is entitled to the benefit of his exceptions." It was said by this court in Vincennes Water Supply Co. v. White (1890), 124 Ind. 376, 24 N.E. 747: " When a party entitled to a bill of exceptions tenders the proper bill within the time allowed by the court he has done his whole duty, and the duty of signing and filing then remains with the judge." See, also, Creamer v. Sirp (1883), 91 Ind. 366; Hamm v. Romine (1884), 98 Ind. 77; McCoy v. Able (1892), 131 Ind. 417, 30 N.E. 528; Smith v. State (1896), 143 Ind. 685, 42 N.E. 913; Robinson v. State (1899), 152 Ind. 304, 53 N.E. 223. We hold that the evidence is before us.
The facts, as they appeared upon the trial, are as follows: In 1849, Cephas S. Holden traded for the real estate in controversy by the description first above given. He died intestate some three years later, the owner of said property, leaving his widow, Mary F. Holden, and their four children surviving him. The children died in youth, and said Mary F. Holden acquired their interests by inheritance. She afterwards married one Langford, the relation continuing until his death, which occurred in 1896. Mrs. Langford improved said property by building four houses upon it, and, during her later years, she had a considerable estate aside from that. She died in 1901. For some years preceding her decease she resided in the south house on said property, and she had for a housekeeper an aged and infirm woman, Mrs. Ludlow. In her later years Mrs. Langford was without near relatives. She was laboring under the burden of age, and had a number of ailments. During the year after her husband's death she was very lonely and sorrowful. In the summer of 1896 she visited appellant, a niece of Cephas S. Holden, who lived in Colorado, and supported herself and invalid mother by teaching and painting. During the spring and summer of 1897 there ensued the following correspondence between them:
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