The appellee sued the appellant. A demurrer to the complaint, for want of sufficient facts, was overruled.
The complaint showed, in substance, that the appellee, on the 1st of September, 1874, intermarried with one Martin Beatty; that she then owned eighty acres of land in Brown county, which, subject to a mortgage thereon to one Dubois, she held in virtue of a previous marriage; that on the 1st of November, 1875, said Dubois took a judgment of foreclosure of said mortgage, in the sum of $261.25, with costs, in the Brown Circuit Court, and on the 3d of June, 1876, said land was sold by the sheriff, under the decree of foreclosure, for $305.81; that the appellant was the son of said Martin Beatty and step-son of the appellee; that she reposed great confidence in him; that on the day of said sale she had not the money to pay said debt; that the land was worth $1,000; that she was able to raise all the money necessary to pay the debt except $80, and she did raise said money, the sum of $225.81, and gave it to the appellant for the purpose of bidding in said land for her benefit; that it was agreed between the appellee and the appellant, that he would take her said sum of $225.81, and supply said sum of $80 necessary to make the full amount of the debt out of his own moneys; that he would «attend said sale and bid the full amount of said debt, and that, to secure him for the repayment of his said $80, the certificate of purchase should be made to him, but that it should only be held by him as such security.
It was alleged that he advanced said money, as agreed; that she did not attend the sale, but relied solely on her agreement with him; that he, intending to buy said land for himself, and to defraud and cheat her out of said land, attended the sale, bid in said land, paid said $80 of his own money and said money provided by her, and took the certificate in his own name; that she continued to live on said land, and he agreed with her to hold said certificate as security merely for the money so advanced by him, and that she might continue to occupy said premises as her own until she could sell the
It is insisted in argument that the agreement for the payment of $500 was without consideration, because, as is supposed by counsel, the appellee at the time of the appellant’s promise to pay that sum had no interest in the land or right of possession, but was a mere- tenant at sufferance, it being contended that the verbal agreement in relation to the sheriff's sale could not create a trust in her favor or confer on her aDy int-erest in the land.
The averments of the complaint show that the land sold by the sheriff was the property of the appellee, and that she, through the appellant, paid the purchase-money, a portion
In such cases the grantee holds the title as a mortgagee in equity.
Upon the principle that the statute of frauds can not be invoked to protect a party ip the perpetration of a fraud, on which is based the doctrine of specific performance in equity, it was said in Levy v. Brush, 45 N. Y. 589, that when a party whose lands were about to be sold by judicial sale has agreed with another to loan him money and bid off and hold the land as a security for the money, and the agreement has been consummated, the party so acquiring the title has been regarded as holding it as a mortgagee in equity. And it was said that upon these grounds Ryan v. Dox, 34 N. Y. 307, was decided.
In Ryan v. Dox, supra, it was held admissible to prove that the defendant purchased, under a foreclosure sale, upon a verbal agreement that the purchase should be for the bene
In Carr v. Carr, 52 N. Y. 251, in speaking of a deed of conveyance absolute on its face, but intended as a mortgage, it was said : “ It is not material that the conveyance should be made by the debtor or by him in whom the equity of redemption will exist. It is sufficient if the debtor and he who claims to occupy the position of mortgagor with the right of redemption, has an interest legal or equitable in the premises, and the grantee of the legal title has and acquired such title by the act and assent of the debtor, and as a security for his debt.”
In Sweet v. Mitchell, 15 Wis. 641, it is said: “It is frequently the case that parties desire to give security upon lands the title to which is not in them, but is subject to their control. It is also frequently that they desire to give it upon lands owned by them, but liable to be sold on judicial proceedings against them. The rule itse'lf being once established, that parol evidence may be admitted to show an absolute deed a mortgage, when such an agreement is clearly established, we do not think it material whether a judicial sale was adopted merely as a means of conveying the title to the mortgagee, or whether it was conveyed to him by some third party for and on account of the mortgagor. These circumstances furnish no substantial grounds for distinguishing the case from a direct conveyance from the mortgagor, and the cases which have established the rule do not make any distinction.” See, as illustrating the case at bar, Stephenson v. Arnold, 89 Ind. 426; Ayers v. Slifer, 89 Ind. 433; Butt v. Butt, 91 Ind. 305; Rector v. Shirk, 92 Ind. 31.
There were five paragraphs of answer. The first was a denial; the second alleged payment; the third set up the statute of limitations; the fourth alleged that the contract sued on was without consideration; a demurrer to the fifth was sustained. If it contained any allegations that were not merely conclusions of law, they were available under other paragraphs of the answer. Counsel for appellant dismiss the fifth paragraph of the answer by referring to their discussion of the demurrer to the complaint, and we may dismiss it without further remark.
The appellee replied by denial. The cause, having been commenced in the Bartholomew Circuit Court, was tried there by a jury, the verdict being in favor of the appellee. A new trial having been granted, the venue was changed to the Brown Circuit Court, where a trial by jury again resulted in a verdict for the appellee for $500. A motion for a new trial was overruled.
It appeared in the evidence that the appellant provided about $80 of the purchase-money, and that the remainder, about $225, was provided by his father. The appellee’s theory was that the portion so provided by the father was her money; while the appellant claimed that it belonged to the father, and that it was the purpose of the father and son to get the title of the land for the latter, so that the children of the appellee by a former marriage should not have it, and that for this reason the father let the land go to sale instead of paying the judgment.
The court did require, in various forms, that for the plaintiff’s recovei’y the jury should find that the defendant made a loan to the plaintiff, and that the certificate was taken and held as security for the payment of such loan. The court told the jury that if they found that no agreement was made by and with the plaintiff to lend or advance her or for her benefit any money to make the purchase of the land, they must find for the defendant; also, that if they found that the defendant did not agree with or for the plaintiff to lend or advance for her benefit any sum of money to make the purchase of the land under the mortgage sale and to take and hold the certificate as security for such sum only, they must find for the defendant; also, that if they found that the father had in his hands no money or means of the plaintiff, they might consider this as a circumstance tending to disprove an arrangement with the defendant to furnish a portion of the purchase-money as a loan for her benefit; also, that if the fact that the father furnished a portion and the defendant a portion was satisfactorily explained under some other hypothesis contradicting such an arrangement, then these facts could not be regarded as confirmatory circumstances.
If it was true that the appellant, under an agreement with the appellee, provided a sum of money for the purchase of 1 the land, and did so by way of a loan to the appellee, and took the certificate as a security for the repayment of the sum so provided by him, such facts would be entirely inconsistent with his theory that he and his father, with their own money, purchased the land for the appellant, and would constitute a recognition of such an interest in her as entitled her to redeem from him, and such an interest as would constitute a consideration for his subsequent promise on which she sued.
If the instructions contained no misstatement of law to his injury, he can not be heard to complain of them. If he de.sired that other propositions should be stated to the jury, he •should have made proper request therefor.
In a bill of exceptions it is stated that the defendant requested the court to give certain instructions, which are set ■out, and it is stated that the court refused to give them, and that the defendant excepted. It does not appear that the instructions so asked were signed by the defendant or his attorney, and it is insisted on behalf of the appellee that there •could be no error, therefore, in refusing to give them. This position of the appellee is well taken. In Choen v. Porter, 66 Ind. 194, it was said: “ If the instruction ” (asked by the defendant) “ had been refused, and the defendant were complaining of the refusal, the plaintiff might well object that it was not signed by the defendant or his attorney, whether it was contained in a bill of exceptions or otherwise, as the failure to sign might be good ground for a refusal to give it.”
After each of these instructions are the words “ Refused ■and excepted to at the time by the defendant,” or words of like meaning, signed by the attorney for the defendant as such, and dated and signed by the judge.
This is not the signing of the instructions contemplated by the fourth clause of section 533, R. S. 1881, but must be regarded as a signing of the exception.
The cause appears to have been fairly tried and determined, :and the judgment should be affirmed.
Pee Curiam. — It is ordered, upon the foregoing opinion, that the judgment be affirmed, at appellant’s costs, with ten per cent, damages.