128 Ind. 261 | Ind. | 1891
This action was brought by the appellee, William Sear, against the appellants, Alexander and Malona Barrett, who are husband and wife, to quiet appellee’s title to the land described in the complaint, being about 185 acres situate in Fulton county, Indiana.
The appellants filed an answer, in which it is alleged that, on and prior to the 14th day of March, 1883, the appellant Alexander Barrett was the owner of the land in controversy, of the value of $8,000; that there was a mortgage on the. land, executed by the appellants before that date to one Charles W. Welch, for $2,200, upon which the interest was due and the principal about to become due, and it was neces
The appellee demurred to the paragraph of answer, setting up the foregoing facts, which demurrer was overruled, and he filed a reply in denial.
Appellants also filed an answer in denial.
The question presented by the record and discussed by ■counsel arises on the overruling of appellants’ motion for a new trial, and relates to the introduction of evidence.
It was admitted by the parties that the appellant, Alexander Barrett, owned the land. Appellee then made proof of the execution of the mortgage by the appellants to Welch, the foreclosure of the same and sale, showing a sale to Y/elch, the issuing of a sheriff’s certificate to him and its assignment to Gilmore & Snyder and a sheriff’s deed to them, their deed to John J. Barrett and his deed to appellee. The appellants then offered to make proof of the agreements by which the land was conveyed by appellants to Brown, and from Brown to John J. Barrett; that thei’e was no consideration for such conveyances or either of them ; that the purchase of the certificate by Gilmore & Snyder and the taking of the deed by them, and their conveyance to John J. Barrett and the taking back of the mortgage, were all done in pursuance of an agreement made in advance between them aud said John J., and that it was in fact but a loan to
It is contended by counsel for the appellee that as the appellee established a title through the sale on the foreclosure of the mortgage and mesne conveyances, the facts alleged did not constitute a defence and could not be proven.
The facts alleged constituted a good defence to the action. At the time of the conveyance by the appellants to Brown, the son-in-law, Alexander Barrett was of unsound mind, which fact was known to the grantee Brown, and there was no consideration for the conveyance, and Alexander retained possession of the land. Brown could not have maintained an action against the appellants to quiet title or for the possession. John J. Barrett, with the knowledge of the facts, received a conveyance for the land and paid no consideration for the same. Both Brown and John J. Barrett took a conveyance of the land for the purpose of mortgaging it to secure a loan to pay off an encumbrance. While they held the naked legal title the deed from Alexander Barrett and his wife was voidable, and Alexander was the equitable owner of the land.
John J. Barrett, in pursuance of his parol contract, made an agreement for the loan of money to pay off the
The land to which the contracts related was the land of Alexander Barrett. By the failure of John J. to borrow the money and pay off the mortgage debt, as he had contracted to do, and allowing the land to sell and the deed to issue to another, who by agreement was to and did reconvey it to him upon his mortgaging the land for the amount of the debt, he acquired no better title to the land than he had by virtue of his original conveyance. John J. Barrett has paid nothing for the land, but simply pledged the land, which in equity belonged to Alexander, for the repayment of the debt. The appellee purchased the land with full knowledge of all the facts, and the appellant Alexander is not estopped from avoiding the voidable deed which he executed to his son-in-law Brown for the land. Procuring a deed to issue on the sheriff’s certificate to Gilmore & Snyder, and having them convey the land to him, John J. Barrett, with a view of obtaining a valid title to the same as against the appellants, was a fraud upon the right of the appellants. The only thing of value given in consideration for such conveyance as appears from the facts was the mortgage upon the land, which was in fact owned by the appellant Alexander, and in which John J. had no interest, and which was worth five thousand dollars more than the mortgage debt. The taking of the deed under the facts as alleged vested the title in John J. in trust for Alexander. The property mortgaged and pledged for the purchase-money was the property, the land, of said Alexander. Hull v. Louth, 109 Ind. 315 ; Gray v. Turley, 110 Ind. 254; Physio-Medical College, etc., v. Wilkinson, 108 Ind. 314; Musselman v. Cravens, 47 Ind. 1; Rupert v. Morton, 19 Ind. 313;
The evidence offered was competent, and should have been admitted.
The court erred, in overruling the motion for a new trial. Judgment reversed, at costs of appellee, with instructions to grant a new trial.