Froman v. Froman

13 Ind. 317

• Court: Indiana Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Perkins, J.

This was a suit by Jonathan M. Froman against Paul Froman, William G. Froman, Hiram Froman, and Keziah Froman, for partition.

Hiram Froman answered, setting up title in himself to the whole of the land of which partition was asked.

The facts are these: Paul Froman owned a part of the south-east quarter of a certain section of land, on which he, with his wife, Keziah, resided. Some fifteen years ago said Froman and wife made a voluntary deed to one of their sons, Hiram Froman, of the south-west quarter of said section. Subsequently, said Paul made a voluntary deed of the south-east quarter to his wife, Keziah, and his sons Jonathan, William, and Hiram. Of this last-named tract, and upon these last-named conveyances, partition is sought. Hiram sets up his deed to the south-west quarter, alleges that it was made for that quarter by mistake, when the south-east quarter was intended, asks that it be reformed, the title to the south-east quarter decreed to be in him, and the partition denied.

The Court refused to correct his deed, and gave judgment for partition. The Court acted upon the ground that equity would not aid in perfecting title under a voluntary deed, in a case like the present. And such seems to be the law. 2 Story’s Eq. Juris., § 793.

A Court will not decree the specific performance of a contract, unless it is founded on a consideration. Ind. Dig. 298.

S. Carter and J. Sullivan, for the appellant (1). S. C. Stevens, for the appellee (2).

In one case, Watts v. Bellas, 1 P. Wil. 60, a voluntary-defective conveyance of land was made good. This case is mentioned by Chancellor Kent, in Gillespie v. Moon, 2 Johns. Ch. 514, without disputing its. authority. But it seems to have been overruled. See note to the case in P. Wil., supra, and Greenl. Overruled Cases.

We do not- find the case cited in any elementary work which we have examined.

As to the right of a reversioner to apply for partition, see Moody v. West, 12 Ind. R. 399.

Per Curiam.

The judgment is affirmed with costs.