Nelson v. Parker ( 1996 )

HOFFMAN, Judge.

I respectfully dissent. Our Supreme Court’s decision in Ogle v. Barker, 224 Ind. 489, 494-500, 68 N.E.2d 550, 553-555 (1946) is controlling. In Ogle, the court reasoned:

“[TJhere can be no valid and operative conveyance of land without words of grant or alienation. [Citations omitted.] Property cannot be conveyed by reservation. [Citation omitted.] A reservation in a deed does not create title or enlarge the vested rights of a grantor; it merely reserves the specific interest named therein from the operation of the grant, and leaves that interest vested in the grantor to whom it belonged at and before the execution of the deed.” [Citations omitted.]

Id., 224 Ind. at 494, 68 N.E.2d at 553. The court noted that exceptions had been made in the ease of spouses attempting to convey a life estate in a spouse without interest in the property based upon the intention of the spouse, notwithstanding the technical deficiency in the reservation. Id., 224 Ind. at 500, 68 N.E.2d at 555. The Ogle court rejected the cases which focused on the assumed intention of the spouse to create an interest finding those cases which followed the general proposition, stated above, to be of “sounder reasoning.” Id., 224 Ind. at 499, 68 N.E.2d at 555. Further, the exception for spouses rejected by the Ogle court is not invoked in the present case.

The majority relies upon Brademas v. Hartwig, 175 Ind.App. 4, 369 N.E.2d 954 (1977). The analysis in Brademas is inappo-site. In Brademas, the efficacy of an easement reserved in the deed was at issue. An easement is created in favor of those who may use property but are otherwise without an ownership interest in the property. Thus, the reservation of an easement to those without an interest does not require the initial showing of an interest. However, the creation of a life estate does require an ownership interest. See Ogle, 224 Ind. at 495, 68 N.E.2d at 553 (in deed of conveyance, reservation by owner effective only in favor of grantor theory being some interest held back from conveyance and left where it was).

Under these circumstances and in light of Ogle, I would vote to reverse summary judgment for Parker.