Randall v. Ghent

Perkins, J. — Suit to recover possession of real estate. Judgment below for the defendant. The facts of the case, in short, are these : Thomas Bandall, in his life time, owned the land in dispute, [272] and, on tbe 5th of February, 1860, died in its possession. Tbe plaintiffs in this suit are bis heirs at law. These facts disclose tbe title upon wbicb tbe plaintiffs claim tbe land. Elizabeth Ghent, the defendant, was a step-daughter of Thomas Randall, and, on tbe 5th day of July, 1859, he, “ in consideration of tbe natural love and affection be held to her, as bis said daughter,” conveyed to her, by a deed, drawn in tbe form prescribed for warranty deeds by the statute, tbe land involved in this suit. The deed was duly acknowledged. These facts disclose tbe title upon wbicb tbe defendant claims tbe land. Tbe position taken by the plaintiffs is, that a deed, without consideration, when purporting to be made upon a consideration, is void; that though natural love and affection is a good consideration, recognized in tbe law, as between parent and child, it is not a consideration between an owner of land and a stranger; that natural love and affection, in tbe legal sense of tbe term, can not exist between strangers. It is well settled, that a merely voluntary executory contract, for tbe conveyance of land, will not be specifically enforced; Froman v. Froman, 13 Ind. 317; nor will a voluntary deed be corrected of mistakes, on tbe application of the grantee against the grantor; (Id.) though it will be on tbe application of tbe grantor against the grantee, where, by mistake, tbe conveyance is for a larger estate than was intended. Andrews v. Andrews, 12 Ind. 348. See Wyche v. Green, 16 Georgia, 49. But the proposition seems to be a universal one, in tbis State, that an executed deed, made upon no consideration, whether one be expressed or not, is valid and operative against tbe grantor; and the cases of McNeely v. Rucker, 6 Blackford, 391; Doe v. Hurd, 7 Id. 510, and Thompson v. Thompson, 9 Ind. 324, decide the precise question raised in tbis case, and decide it against tbe plaintiffs. Tbe fact that tbe deed contains a warranty is unimport [273] ant, for this if for no other reason: that in a suit upon a warranty, for its breach, evidence would be heard as to the consideration paid, in determining the question of damages to be recovered. Reese v. McQuilkin, 7 Ind. 450. Henry Seerest, J. A. Scott, and J. A. Matson, for the appellants. Williamson and Daggy, for the appellees. Per Curiam. The judgment below is affirmed, with costs.