Osborne v. Richmond
Osborne v. Richmond
Opinion of the Court
delivered the opinion of the court.
. This is a partition suit, and the sole question for decision is whether a certain deed from David Osborne to his son, G. W. Osborne, should be treated as an advancement and brought.into hotchpot.
David Osborne at one time owned three separate tracts of land—the “Home Tract” of 211 acres, the “Buckner’s Ridge Tract” of 236 acres, and the “Mountain Tract” of 220 acres.
On August 8, 1901, he conveyed 120 acres of the Buckner’s Ridge tract to his son, G. W. Osborne, for life, with
On October 2, 1903, David Osborne, in consideration of $1,500.00, the receipt of which was acknowledged in the deed, conveyed to another son, L. N. Osborne, all of the Home tract with the exception of the “iron ore” theretofore sold to Patrick Hagan, and reserving to the grantor and his wife a life interest in one hundred acres of the tract thus conveyed. This deed contained the following stipulation: “The said grantee, L. N. Osborne, accepts the above tract of land described in this deed as his part, or interest, in the real estate owned by said David Osborne.”
In 1915, David Osborne, being still the owner of the Mountain tract and 116 acres of the Buckner’s Ridge tract,died intestate; and shortly thereafter this suit was brought by G.' W- Osborne against the other heirs of David Osborne, seeking a partition of these lands. The bill alleged that the above recited deed of October 2,1903, to L. N. Osborne constituted an advancement to him of his entire interest in the estate, and that he was not entitled to participate in the partition. The truth of this allegation conclusively appears on the face of the deed, is conceded by L. N. Osborne, and he claims no share in the lands herein involved. Mrs. Ellen Richmond, a daughter, T. J. Osborne, a son, and some of the other heirs of David Osborne, answered the bill and denied the right of the complainant, G. W. Osborne, to share in the partition, because, as they claimed, the deed made to him by his father on August 8, 1901, constituted his full share in the estate.
Proof was taken on both sides, and the court upon final hearing entered a decree adjudging that the land conveyed
Reversed.
Reference
- Full Case Name
- G. W. Osborne v. Ellen Richmond
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Deeds—Recitals in Deeds—Evidence of Payment of Consideration. A deed from a father to his son recited the consideration “hand paid, the receipt whereof is hereby acknowledged.” Held: That this recital, though open to contradiction by satisfactory proof was prima fade true, and must be so accepted unless overturned by clear proof, and that in the instant case such proof was not produced. 2. Advancements—Money Consideration—Parol Evidence.—While an advancement is always a gift, the advancement may be embodied in a deed of bargain and sale for which a money consideration is paid. Thus, where the deed recites a pecuniary consideration, it may be shown by parol that there was also the consideration of an advancement. 3. Advancements—Whether Money Consideration for Deed—Suffidency of the Consideration—Case at Bar.—In the instant case upon the question whether the purchase price recited in a deed from a father to his son was a full consideration for the deed, or whether it was a partial consideration and there was a gift of the residue which must be regarded as an advancement, the evidence did not show that at the time of the conveyance the consideration was not a reasonably adequate price for the land conveyed. 4, Advancements—Intention of Grantor—Case at Bar.—In view of the fact that in the instant case a father in deeding land to one son had expressly recited in the deed that the tract of land conveyed was to be considered that son’s part or interest in the father’s real estate, and that the deed of another tract to a second son contained' no such recital, and in the absence of any preponderating proof that the price paid by the second son was not reasonably adequate, or that the father intended the transaction as other than an ordinary deed and conveyance for a valuable consideration, and in view of the parol evidence in harmony with this view, it was error to treat the conveyance, as an advancement. 5. Advancements—Intention of the Parent—General Rule—Presumption of Advancement.—Whether a gift to a child, supposing the gift to be adapted to-advance the child in life, is or is not to be deemed an advancement such as must be brought into hotchpot, depends upon the intention of the parent; and a free gift so adapted is prima facie to be presumed to have been so designed. 6. Advancements—Time or Valuation.—The value of an advancement when brought into hotchpot is to be fixed as of the date of the gift, and not as of the date of the time when brought into hotchpot, and where in addition to the consideration of ' advancement a valuable consideration is paid by the1 recipient of the advancement, such consideration must be deducted from the value of the advancement as of the date of the deed.