« ΠροηγούμενηΣυνέχεια »
control of the land and building, or of the KNOWLTON, C. J. The money on de$409.08.
posit in the savings bank was originally the No exception was taken to the exclusion of
property of the testatrix, and there is no evidence by the master, and therefore that doubt that it remained hers up to the time of question is not before us. Hillier v. Farrell, her death, unless there was a perfected gift 185 Mass. 434, 70 N. E. 424. Apart from of it to Edward B. C. Bailey in her lifetime. that, the evidence excluded was immaterial. It is clear that the mere deposit of it in her It is or may be important what trust should name, as trustee for him, did not deprive her have been declared by the grantees, or what of her ownership and control of it. The trust resulted from the payment of the mon- statement signed by her at the time of makey. What was the intention of the grantoring the deposit implies that it remained her is of no importance. Even if the deed had
property and subject to her control, although been a deed to Jackson and others as trus- it indicates an intention on her part that so tees, the title to the land and building would much, if any, of the deposit as she allowed not have vested in Nunally and others by to remain there to the time of her death force of their appointment as trustees, al- should become his property. But she could though the parties in this case seem to have not pass the title to property after her death assumed that it would. The issue on which
by such a deposit or by such a statement. the excluded evidence was offered was, as Unless it passed in her lifetime, it did not we have said, on an immaterial point. In
pass at all. To pass property by a gift, either event the legal title is in Jackson and there must be a delivery of it to the donee, his co-grantees and their heirs, or in the sur
and acceptance of it by him, or something vivors or survivor of them.
which is equivalent to such a delivery and Decree affirmed.
acceptance. This has been decided in many
. cases in which the question has arisen in
reference to a deposit in a savings bank in (192 Mass. 564)
the name of another, or as trustee for BAILEY V. NEW BEDFORD INSTITUTION
another. In Brabrook v. Boston Five Cents FOR SAVINGS.
Savings Bank, 104 Mass. 228-231, 6 Am. Rep. (Supreme Judicial Court of Massachusetts. 222, Mr. Justice Wells said: “There must Bristol. Oct. 16, 1906.)
be some act of delivery out of the possession GIFTS–GIFTS OF DEPOSIT IN BANK.
of the donor, for the purpose and with the A donor deposited money in a bank, and at intent that the title shall thereby pass. the same time executed a written statement that the deposit was to be paid to him if he lived, and
* If the act of transfer be complete in case of his death to a donee named. The on the part of the donor, subsequent acceptestimony showed that the donor intended that tance by the donee before revocation will be the donce should have the money, but there was no delivery and acceptance. Held, that the prop
sufficient.” In Scriven v. North Easton Saverty remained the property of the donor and
ings Bank, 166 Mass. 255, 44 N. E. 251, it is passed on his death to his representatives. held that, in addition to what was written
[Ed. Note. For cases in point, see vol. 24, in the bank book, "the testator must have Cent. Dig. Gifts, SS 52-57.]
indicated to the plaintiff, in some form of Report from Supreme Judicial Court, Bris
language, that the deposit then belonged to tol County.
him, although he could not have it until his Action by Edward B. C. Bailey against
father's death, and that this was assented to the New Bedford Institution for Savings, in
by him.” In the opinion in Alger v. North which Walter H. Faunce appears as claimant,
End Savings Bank, 146 Mass. 418-422, 15 N. The court found for the claimant and report
E. 916, 4 Am. St. Rep. 331, we find similar ed the case to the Supreme Judicial Court.
language. Other cases of like import are Judgment on verdict.
Clark v. Clark, 108 Mass. 522; Ide v. Pierce,
134 Mass. 260; Vutt v. Morse, 142 Mass. 1, This was an action to recover a deposit in
8 N. E. 763; Sherman v. New Bedford Five a savings bank deposited by Betsie B. Chase
Cents Savings Bank, 138 Mass. 581; Booth and declared to be in trust for Edward B. C.
V. Bristol County Savings Bank, 162 Jass. Bailey. It appeared that the testator was
455, 38 N. E. 1120; Welch v. Henshaw, 170 desirous that the plaintiff, when he was
Mass. 409, 49 N. E. 659, 64 Am. St. Rep. born, should bear the name of her husband,
309; Cleveland v. Hampden Savings Bank, and his parents assented. Later she said
182 Mass. 110, 63 N. E. 27. that she had remembered him well, and
In the present case, although the testimony would see that he had a substantial remembrance from her. She deposited the money
tends to show an intention of the testatrix
that the boy Edward should have this money in the defendant bank, and at the time made
after her death, there is no evidence of a a written statement to the effect that the
delivery and acceptance of a gift of it in her deposit was to be paid to her if she lived,
lifetime, or of anything tantamount to a debut in case of her death it was to be payable to Edward B. C. Bailey.
livery and acceptance. The property, there
fore, remained hers so long as she lived, and Asa Auger, for plaintiff. F. A. Milliken, passed to her executor after her death, for claimant
Judgment on the verdict.
(167 Ind. 161)
Appeal from Circuit Court, Randolph Coun. ADAMS v. BETZ. (No. 20,482.)
ty; J. W. Macy, Judge.
Action by George Betz against James J. (Supreme Court of Indiana. Oct. 4, 1906.)
Adams. From a judgment for plaintiff, de1. APPEAL-VERDICT - CONCLUSIVENESS-RE
fendant appeals. Case transferred from ApVIEW-STATUTES. An action to quiet title to realty is triable
pellate Court under Burns' Ann. St. 1901, 8 by a jury, and the Supreme Court on appeal is 1337j. Affirmed. not required to weigh the evidence under Acts 1903, p. 338, c. 193, § 8, requiring the Supreme
Jno. W. Headington, for appellant. F. S. Court in cases not triable by jury to weigh the Caldwell, E. E. McGriff, and J. J. Moran, for evidence and award the proper judgment. appellee. 2. QUIETING TITLE – EVIDENCE OF TITLE SUFFICIENCY.
In a suit to quiet title, evidence examined, JORDAN, C. J. Action in the lower court and held to support a finding of title in plaintiff. by appellee to quiet title to certain lands 3. SAME-CROSS-COMPLAINT-PARTIES-RELIEF
situated in Jay county, Ind., described as -REFORMATION OF DEED.
15 acres off of the entire west end of the Where a defendant, in a suit to quiet title, claimed in a cross-complaint that the land was
north half of the northeast quarter of sechis under a deed executed by a third person tion 20, township 24 north, range 15 east, who had by mistake omitted the land in con
more particularly described by metes and troversy, he was, on making the third person a
bounds. codefendant with plaintiff to the cross-complaint,
The action was originally commencand on establishing his claim, entitled to a ref- ed and tried in the Jay circuit court and reormation of the deed, and to a decree quieting sulted in a finding and judgment in favor of his title as against plaintiff.
appellee. A new trial under the statute was [Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, $ 101.]
granted to appellant, and on his motion the 4. VENDOR AND PURCIIASER-BONA FIDE PUR
cause was venued to the Randolph circuit CIIASER-NOTICE-CONSTRUCTIVE NOTICE. court. Appellant by his answer to the com
Where a purchaser of land, at the time plaint disclaimed any interest to a certain of his purchase, knew that a third person was
part of the lands described. He
filed a in possession of land on one side of a fence, and saw that his grantor and the third person
cross-complaint, making the appellee the sole cultivated their lands, respectively, up to the defendant thereto, wherein he alleged that fence, the purchaser had sufficient notice to on December 2, 1902, he purchased certain put him on inquiry as to the third person's right in the land occupied by him.
real estate of Joseph M. Minch, at that time [Ed. Note. For cases_in point, see vol. 48,
the owner thereof, in consideration of the Cent. Dig. Vendor and Purchaser, 88 540-545.) sum of $3,000; that Minch and wife executed 5. BOUNDARIES LOCATION OF LINE BY AD
to him a warranty deed for the following deJACENT LANDOWNERS-EFFECT.
scribed real estate, situated in Jay CounWhere owners of adjoining premises es- ty, Ind.: The north half of the northeast tablish by agreement a boundary line, and they take and hold possession of their respective quarter of section 20, township 24 north, lands and improve the same in accordance with range 15 east, except 15 acres off of the ensuch boundary, each owner, in the absence of tire west end of said tract. Appellant furfraud, is estopped from asserting that the boun
ther alleged in his cross-complaint that at dary so agreed on is not the true boundary, though the period of time which has elapsed
the time of said conveyance by Minch the latsince the line was established and possession ter was the owner of 65 acres of land, more. taken is less than the statutory period of lim
or less, which land is described in the crossitation.
complaint by metes and bounds, and it is [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, $ 248.]
alleged that this land is the tract which Minch 6. QUIETING
intended to convey to appellant, but by reaTITLE-TITLE OF PLAINTIFF -SUFFICIENCY.
son of a mutual mistake of the said grantor In a suit to quiet title, defendant relied and grantee, and the scrivener who drafted on a deed as giving him title, but conceded
the deed, the land was described as the that the deed as written did not cover the land in controversy, and he did not present a case
north half of the northeast quarter, etc., entitling him to a reformation of the deed so setting out the description as hereinbefore as to include such land. His grantor, before given; that the deed executed by Minch and the commencement of the action, conveyed his interest in the land in controversy to plaintiff.
wife to appellant by reason of said mistake Held, that whatever infirmity might have ex- did not convey to him all the land which he isted in respect to plaintiff's title to the land purchased and which was intended by his involved was cured by such conveyance.
said grantor to be conveyed to him. It is [Ed. Note.-For cases in point. see vol. 41,
further averred that appellee, "for the purCent. Dig. Quieting Title, $$ 36, 37.] 7. SAME-EVIDENCE-ADMISSIBILITY.
pose of cheating and defrauding the appelIn a suit to quiet title, it appeared that
lant of a part of his land, procured the said plaintiff and defendant's grantor had located Joseph M. Minch to make and execute to him the boundary between them. A partition fence a quitclaim deed for 15 acres off of the entire had been erected and maintained on the boun
west end of the west half of the northeast dary for over 10 years. Each cultivated his respective premises to the fence. Held, that evi- quarter of section 20, township 24 north, dence relative to the establishment of the range 15 east, in Jay county, Ind., which line was admissible against defendant, for the casts a cloud upon a part of appellant's agreeinent between plaintiff and defendant's grantor was binding on them and on persons
title.” The prayer of the cross-complaint claiming through them or either of them. is that appellant's title to the lands therein
described by metes and bounds be quieted and for all other and proper relief. Upon the issues joined there was a trial by the court and a finding in favor of appellee, and over appellant's motion for a new trial judgment was rendered quieting appellee's title to the lands in controversy.
The only error assigned in this appeal is that the court erred in overruling the motion for a new trial. No errors raising the sufficiency of the complaint are assigned. Those discussed by appellant's counsel are that the finding of the trial court is not sustained by the evidence and is contrary thereto, and that the court erred in admitting certain evidence. Appellee's counsel insists that none of the points presented by appellant should be considered for the reason that he has not complied with rule 22 of this court (55 N. E. V.) in the several respects mentioned, especially in his failure to set forth the evidence as required by said rule. This contention is in the main verified by an examination of appellant's brief, and, were it not for the fact that counsel for appellee in their brief have at least in part supplied the omission of appellant, we would dismiss the appeal without consideration. Appellant requests that this court, under the provisions of section 8 of the actof 1903 (Acts 1903, p. 338, c. 193; section 641h Burns' Ann. St. 1905), weigh the evidence and award judgment in accordance with the weight thereof. An action, however, to quiet title to real estate is triable by a jury. Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341, and cases there cited. Consequently section 8 of the statute in question does not apply to the case at bar, for by its express provision it is limited to cases not triable by a jury as a matter of right.
There is evidence in the record to establish the following facts: The 80 acres of land out of which the tract in controversy was carved was originally owned in fee simple by Jackson F. Betz. He died intestate the owner thereof, leaving appellee, his son, and five other children as his only heirs at law. After his death these children made partition of the 80 acres by executing to each other partition deeds. The part now claimed by appellee was set off to him in this partition, and, as it appears, was intended to embrace 15 acres, excepting 1 acre which was held by Wabash township for school purposes and which was subsequently, and prior to the commencement of this action, purchased by appellee and conveyed to him by the proper township trustee. He was in possession of the premises and was residing thereon with his family at the time Joseph M. Minch became the owner of the remainder of the land through deeds of conveyance executed to him by the brothers and sisters of appellee. When Minch became the owner of the land lying east of the part occupied and claimed by appellee, there was no partition fence or other dividing line be
tween the two tracts, namely, the one purchased by Minch and the one held by appellee. Thereupon Minch and appellee agreed to establish a boundary line and erect a partition fence thereon. Minch recognized that appellee owned 15 acres of the 80-acre tract, 14 of which he had acquired as an heir of his father and which had been set off to bim under the partition heretofore mentioned, and the other acre which he had purchased from the township trustee as heretofore stated. The man whom Minch selected to represent him, together with appellee, made measurements of the land and ran a division or boundary line north and south. The parties then by agreement constructed a wire fence on this agreed boundary line, which divided the lands of Minch on the east and those of appellee on the west. Minch acquiesced in this division and was fully satisfied that he had his portion of the 80 acres, and during the 10 years and over in which he owned and held the lands adjacent to those of appellee he recognized and accepted the fence so erected and maintained, and acted upon by the parties, as the true dividing boundary line and never in any manner disputed nor called the same in question. Minch during the entire period of his ownership after the erection of this partition fence cultivated the lands on the east of this fence, and appellee likewise cultivated the land lying west thereof up to the fence. Appellant, long prior to his purchase from Minch, resided in the immediate vicinity of these lands, and at and before his said purchase saw this boundary or division fence and saw and knew that Minch and appellee cultivated the lands on each side thereof to the said fence. On December 2, 1902, Minch and wife sold and conveyed by warranty deed the land situated east of this boundary or partition fence to appellant in consideration of $2,800. This deed described the land as follows: "The north half of the northeast quarter of section 20, township 24 north, range 15 east, except fifteen acres off of the entire west end thereof," stating that the land therein conveyed was 65 acres, "more or less.” It was further stipulated in this deed that the land was conveyed to appellant by Minch subject to a mortgage of $3,000 executed to the Dickson Lumber Company, which mortgage indebtedness appellant in the deed assumed and agreed to pay.
During the negotiations for the sale and purchase of the land between Minch and appellant, and prior to the execution of the deed thereto, a paper containing a description of the land which Minch proposed to sell and convey to appellant was placed in the hands of the latter. The description therein contained and set out excepted from the conveyance the following real estate: “A strip or parcel of land containing fifteen acres off of the entire west end of said tract above described, now owned by George Betz." After the sale and conveyance of the land by Minch to appellant, the latter discovered through a survey which he procured to be made that, if the tract conveyed to him by Minch covered or embraced 65 acres, it would be necessary to change the boundary line so as to extend it two rods west of the old boundary fence agreed upon and erected as hereinbefore stated by Minch and appellee. The latter about the same time discovered that he had not fully acquired title to the 15 acres which he claimed, or to all of the land lying west of the said boundary or partition fence; or, in other words, he discovered that there was a strip of land two rods wide extending along the entire width of the 80-acre tract at the east end of the supposed 15 acres which was not covered by the partition deeds executed to him by his brothers and sisters. He immediately procured from Minch, for a nominal consideration, a quitclaim deed covering and embracing this strip, and also procured a warranty deed from his brothers and sisters conveying this trip to him. This latter deed, , as the evidence discloses, was made for the purpose of correcting the former partition deed. Thereafter appellant continued to claim title to this strip, insisting that there was a mistake in the description contained in the deed of Minch and wife to him, his in. sistence being that the land should have been described in the Minch deed by metes and bounds; that Minch's grantors had conveyed more land to Minch than the latter had conveyed to him. Appellant thereupon, over the objection of appellee, began to build a division fence on the land claimed by appellee, erecting it two rods west of the old boundary fence. Appellee then instituted this action.
A consideration of the evidence in this case thoroughly satisfies us that the j'idgment of the lower court is a correct result. The facts established thereby clearly disclose that appellee is the legal owner of the land in dispute and is entitled to have his title thereto quieted and set at rest as against the claims made by appellant. Counsel of the latter, however, insist that the evidence shows that Minch by his conveyance to appellant intended to sell and convey all of the land which he owned and held in and to the 80-acre tract by virtue of the conveyance to him by the children and heirs of Jackson F. Betz, to which we have herein referred; further contending that it was the intention of both appellant and Minch to have such a description in the deed executed by the latter to the former as would embrace or cover all the lands so owned by Minch, that the exception of 15 acres off the entire west end of the tract conveyed was a mutual mistake, and that therefore appellant, under his crosscomplaint, is entitled to have said deed reformed so as to comply with the intention of the parties.
It is true that if the appellant had made Minch, his grantor, a codefendant with ap
pellee to a cross-complaint in this action, he might thereunder, on a sufficient showing, have secured a reformation of the deed of conveyance to him from Minch so as to cover all of the real estate intended by the parties at the time of the sale to be conveyed, and then had his title thereto quieted as against appellee. Smith v. Kyler, 74 Ind. 575; Hunter v. McCoy, 14 Ind. 528; section 280, Burns' Ann. St. 1901. The trial court, however, appears to have found adversely to appellant on all the issues which he tendered by his cross-complaint, and the evidence fully supports this finding. Minch on the trial testified that he only intended to convey to appellant the land which he owned lying east of the boundary fence between him and appellee. Other evidence in the case fully corroborates his testimony in this respect.
As heretofore stated in our summary of the evidence, it appears that some time before the execution of the deed from Minch to appellant the latter was given a paper containing a description of the real estate which Minch intended to convey. The description therein contained excepted a strip or parcel of land containing 15 acres owned by George Betz (being the appellee herein) off of the entire west end of the tract to be sold and conveyed. Appellant, when he purchased the land, saw the boundary or partition fence in question and knew that appellee was in possession of the land west thereof, and saw that Minch and he cultivated their lands up to the fence on their respective sides. These facts were sufficient notice to appellant to put him upon inquiry as to appellee's claim or right in the land west of the fence. Kinsey v. Satterthwaite, 88 Ind. 342; Barnes v. Union School Township, 91 Ind. 301. As is shown, a definite piece of land, 15 acres, was excepted by Minch in his deed to appellant from that portion of the 80 acres which he conveyed. The part conveyed was stated to be 65 acres, “more or less." The authorities, as a general rule, affirm that, where it appears in a deed of conveyance of land by the qualifying words "more or less" the statement of the number of acres in the deed is a mere matter of description, and not of the essence of the contract, the purchaser, in the absence of fra'd, takes the risk as to the quantity of acres conveyed to him. Tyler v. Anderson, 106 Ind. 185, 6 N. E. 600; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599.
Appellant contends that the boundary line established under the agreement between Minch and appellee could not alone operate to give any title to lands west of the said line with which appellee was not invested at the time the line was so established. It is disclosed, however, that, at the time the boundary line in question was established by Minch and appellee, there had been no definite or certain division line located between their respective tracts. It appears
from the evidence that each of these parties the old boundary line by Minch and apin good faith located and established what pellee. It is contended that what was done they believed to be a true division line be- by these parties in establishing said line was tween their adjoining tracts of land. This done in the absence of appellant and without line, after it was located, was, for at least his knowledge, and that no record was made a period of 10 years prior to the sale by to notify subsequent purchasers of the locaMinch to appellant, recognized and accepted tion of this line. But, as heretofore stated, by each of the owners as the true dividing after the location of the line by Minch and line between them. The line was, under the appellee, a partition fence was erected and circumstances, what may be termed a prac- maintained thereon by said parties for a tical location of the boundary line, and period of over 10 years; each cultivating certainly, if not conclusive in respect to the his respective premises to this fence. This boundaries of the respective premises, it was the condition of affairs at the time apafforded strong evidence as against either pellant made his purchase. These facts, as Minch or appellee, and all persons claiming previously asserted, were sufficient notice through or under them, that it was the true to appellant. A valid agreement between bo'indary or dividing line of the lands in owners of lands locating a boundary line bequestion. 5 Cyc. pp. 930-935. As a general tween them is binding upon each and upon rule, it is affirmed by the authorities that all persons claiming under or through them, where owners of adjoining premises establish or either of them. 5 Cyc. p. 933. There was by agreement a boundary or dividing line be- no error in admitting the evidence in questween their lands, take and hold possession tion. Pitcher v. Dover, supra. of their respective tracts, and improve the Some minor rulings of the court are called same in accordance with such division, each in question, but these, if they be conceded party, in the absence of fraud, will there
to be erroneous, were harmless and could after be estopped from asserting that the have exerted no influence over the decisions line so agreed upon and established is not the of the trial court. true boundary line, although the period of Judgment affirmed. time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. 1 Cyc. p.
(167 Ind. 548) 1036; 5 Cyc. supra; St. Bede College v. Web- POLK V. JOHNSON. (No. 20,896.)1 er, 168 Ill. 324, 48 N. E. 165; Tate v. Foshee, (Supreme Court of Indiana. Oct. 3, 1906.) 117 Ind. 322, 20 N. E. 241; Pitcher v. Dove, 1. APPEAL-PARTIES–INTEREST-ORDER FIX99 Ind. 175, and authorities there cited; Mey
ING RECEIVER'S COMPENSATION. ers v. Johnson, 15 Ind. 261. The general rule
Where a receiver was appointed for the
property of a debtor, the latter had a sufficient recognized by the a'thorities is that a boun
interest in the subject-matter of the litigation dary line located under such circumstances, to entitle him to appeal from an order fixing in the absence of fraud, becomes binding on
the compensation to be paid to the receiver. the owners establishing it, not on the prin
2. SAME-NECESSARY PARTIES.
Where, after the resignation of a receiver, ciple that the title to the lands can be passed
a judgment was rendered directing the receiver's by parol, but for the reason that such own- successor to pay him a specified sum for his ers have agreed permanently upon the limits
services, from which judgment a vacation apof their respective premises and have acted
peal was taken by the debtor, the succeeding
receiver was a necessary party to such appeal, in respect to such line, and have been con
under a statute requiring all persons named in trolled thereby, and therefore will not there- and affected by the judgment from which a vaafter be permitted to repudiate their acts. But
cation appeal is taken to be made parties. appellee need not and does not base his right
[Ed. Note.-For cases in point, see vol. 2,
Cent. Dig. Appeal and Error, $$ 1814-1819.] to the strip of land in dispute upon the location of the boundary line in question, for ap
Appeal from Circuit Court, Johnson Counpellant virtually concedes that the deed of ty; Vinson Carter, Special Judge. conveyance from Minch to him did not cover the Application by Grafton Johnson, as receiv. strip of gro'ind in controversy, and as ap
er, etc., for an allowance for his services, pellant under the evidence has not presented
to which James T. Polk filed objections. a case entitling him to have the Minch deed From an order directing payment to petitionreformed, and as Minch and the brothers er of $9,500, and sustaining the exceptions and sisters of appellee some time before the in part, objector appeals. Dismissed. commencement of this action conveyed to For opinions in Appellate Court, see 76 him all of the interest and title which they N. E. 634, and 77 N. E. 1139. or either of them had to the land herein
Chas. F. Coffin, L. Ert Slack, L. J. Hackney, in controversy, therefore whatever infirmity or
and Wilson & Townley, for appellant. deficiency which may have previously existed
A. McAlpin and Miller, Shirley & Miller, for in respect to appellee's title to the strip of
appellee. ground involved has been cured by said conveyances.
MONTGOMERY, J. Appellee filed his resAppellant complains of the action of the ignation and report as receiver of appeltrial court in permitting parol evidence to be lant's property, in which he asked an allowintroduced relative to the establishment of ance of $20,000 for services, to which appel
* Rehearing denied, 79 N. E. 191.