Wilson v. Carrico
| Decision Date | 12 December 1900 |
| Docket Number | 19,184 |
| Citation | 58 N.E. 847,155 Ind. 570 |
| Parties | Wilson v. Carrico |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Affirmed.
John S Bays, for appellant.
John T Hays, for appellee.
Action by appellant against appellee to recover possession of and quiet title to the real estate described in the complaint. This is the second appeal by appellant. Wilson v Carrico, 140 Ind. 533, 40 N.E. 50.
The errors assigned call in question each conclusion of law and the action of the court in overruling appellant's motion for a new trial.
It appears from the special finding that Bazzle Carrico was the owner in fee simple of the lands in controversy. On November 18, 1867, Bazzle Carrico and wife, for a consideration of $ 150, executed a deed conveying said lands to Elza Carrico, subject to the life estate of the grantors. November 5, 1869, said Bazzle Carrico and wife executed a deed for the same lands to appellee, subject to the life estate of the grantors. This deed was made subject to the following condition contained therein: "The aforesaid Benjamin Carrico binds himself to keep the land and farm in good repair, and to pay the customary rent and the tax on the land from this date, and furnish fire-wood, and do milling and other necessary favors that the old people may need." On March 9, 1870, Elza Carrico and wife, for a consideration of $ 150, executed a deed for said lands to appellant, subject to the life estate of Bazzle Carrico and wife. Elza Carrico and wife were living with Bazzle Carrico, the father of said Elza, on November 18, 1867, when said deed was executed to said Elza. At the time of the execution of said deed by Elza Carrico and wife to appellant said Elza and wife had removed from Sullivan county, where they resided when said deed was made, and appellee was then in possession of said lands. Bazzle Carrico remained upon and occupied said real estate, until his death on September 6, 1872, and his wife remained upon and occupied said real estate thereafter until her death on January 11, 1892. Appellant never had possession of said lands, but paid the taxes thereon from 1870 to 1880. During the year 1881, and at all times since, appellant has been a nonresident of the State, having resided in the states of Kansas and Tennessee. In 1880, by advice of counsel, appellant did not pay the taxes for 1881 and 1882, and the same became delinquent. In 1883 said real estate was sold for said delinquent taxes by the treasurer of Sullivan county to Edgar T. Wilson, a brother of appellant, for $ 35, which sum was furnished by appellant to his brother to purchase said real estate at said tax sale. That said real estate was not redeemed from said tax sale at any time, and afterwards, on March 24, 1885, the auditor of said county executed a deed for said real estate to said Edgar T. Wilson, which was duly witnessed by the county treasurer, and duly acknowledged and recorded. Afterwards, on May 28, 1886, said Edgar T. Wilson and wife, without the knowledge of appellant executed a quitclaim deed for said real estate to appellee, in consideration of which appellee paid said grantor $ 60, which sum said Edgar T. Wilson paid to appellant who still retains the same. That all of the deeds mentioned were duly recorded within the time fixed by law, except the deed from Bazzle Carrico and wife to appellee, which was not recorded until sixteen years after its execution. Appellant has never executed any deed for said real estate to any one, but has continuously claimed to own the same since he received the deed for said real estate from Elza Carrico and wife.
This action was commenced March 8, 1893. The final judgment which followed the conclusions of law was that appellant take nothing by this suit, and that appellee recover from appellant his costs. It is first insisted by appellant that he is entitled to recover on the facts found, and that, therefore, the conclusions of law are erroneous. Appellant must recover, if at all, upon the strength of his own title.
None of the deeds executed by Bazzle Carrico and wife purported to give the grantee therein any right to possession until after his death. The first time that the grantee in any of said deeds was entitled to possession of the real estate therein described was after the death of said grantor's wife in 1892. The deed executed to Elza Carrico in 1867 was valid, and conveyed to him the real estate in controversy, subject to the life estate of the grantors. Appellee had constructive if not actual notice of this deed, for the reason that it was duly recorded within the time required by law. It follows, therefore, that the deed made in 1869 to appellee for said real estate, subject to the life estates of the grantors, conveyed no title therein to appellee, for the reason that the real estate described had been conveyed to Elza Carrico in 1867. The condition subsequent contained in the deed to appellee, that he should keep said land in good repair and pay the taxes thereon, was, therefore, without any consideration. It is true that the finding shows that appellee was in possession of said real estate on the day Elza Carrico and wife executed a deed therefor to appellant, but when, how, or under whom appellee held possession is not stated; it is also found...
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