169 Ind. 537 | Ind. | 1907
Lead Opinion
This was a suit instituted by appellant against appellees, to declare a deed a mortgage, and for an accounting with appellees as mortgagees in possession. Appellees answered by general denial, and they filed a cross-complaint against appellant to quiet title, to which appellant addressed a general denial. There was a trial by the court upon the issues thus formed, which resulted in a finding and decree for appellees. Error is assigned on the overruling of appellant’s motion for a new trial. The chief contention of counsel for appellant is as to the sufficiency of-the evidence to sustain the finding.
April 29-, 1891, appellant conveyed to appellee Boyd, by general warranty deed, 360 acres of land in Rush county, for the recited consideration of $1,400, subject to a mortgage of $9,000. Contemporaneously with the execution of said deed appellant and Boyd, respectively described as the first and second parties, executed a writing, which recited Ferguson’s conveyance of said land (describing it) by deed to Boyd, subject to said $9,000 mortgage, upon the consider:
“It is agreed that the party of the second part will aid in preventing a foreclosure of said $9,000 mortgage, if possible, and guarantee the payment of eight per cent interest instead of seven per cent until September 1, 1891, from this date, in order to prevent the owner from foreclosing the same, but the extra per cent shall not be paid in cáse foreclosure proceedings are begun and additional expense added to the debt. -Now it is agreed by the parties hereto that the party of the second part will reconvey and convey back said real estate to the party of the first part on or before March 15, 1892,. upon the repayment of said sum of $1,400, together with the interest thereon at the rate of eight per cent per annum, together with any and all amounts that the party of the second part may have paid on said $9,000 mortgage debt, and interest, but the party of the first part shall keep and retain possession of said real estate, and cultivate the same and keep it in good condition, until March 15, 1892, and shall give a mortgage on the growing crops, and on his corn crop, when planted, to secure the interest to the party of the second part, on said entire sums of money, so paid and with which said lands are encumbered. The parties hereby further agree that in case the party of the first part fails to pay all of said sums of money by March 15, 1892, the party of the first part shall deliver up full and peaceable possession of the aforesaid real estate, without process of law, and in reasonable condition. The party of the first part shall also pay the taxes that accrue out of the growing wheat on said lands. ’ ’
The above instrument was not recorded. At the time of its execution Ferguson made a chattel mortgage to Boyd on his growing crop and on certain live stock, to secure the interest on $1,400, and the interest on such sum as Boyd might pay, on the $9,000 mortgage which was a lien On said land. Further chattel mortgages were subsequently executed by Ferguson to Boyd, but, as the account on which they were executed may perhaps be said to be in dispute, we shall not
Going back to the proposition that, under the deed and the collateral instrument before referred to, Boyd had the legal title, attention may next be called to the language of Justice Story in Flagg v. Mann, supra. He said on page 541: “The present bond does not declare that, if the condition is complied with the conveyance shall be utterly void. On the contrary, it is to remain in full validity, and a reconveyance of the title is to be made, which necessarily supposes that, until the reconveyance, the estate remains at law in the grantees.” In Baird v. Kirtland, supra, a debtor executed
In Fitch v. Miller (1902), 200 Ill. 170, 65 N. E. 650, where an instrument of defeasance was technically insufficient, it was held that the grantor’s deed left in him only a right of redemption, and, as the latter was purely an equitable estate, a court of chancery would not protect and enforce itJ
Judgment affirmed.
Rehearing
On Petition for Rehearing.