Fletcher v. Mansur, 5 Ind. 267

Fletcher v. Mansur

5 Ind. 267 | Ind. | 1854

Davison, J.

Mansur, the complainant below’, on the 23d of November, 1843, filed his bill in chancery against Elijah Barratt, Sr., and the following-named children and heirs of Mary C. Barratt, deceased, viz., James Barratt, Elijah Barratt, Jr., Susan Barratt and Lydia Barratt; the said Mary C. Barratt, at her death, being the wife of Elijah Barratt, Sr. . On the 20th of March, 1848, the complainant filed a supplemental bill, whereby he made Fletcher and Butler parties to the suit. Elijah Barratt, Sr., failed to appear, and a default was entered against him. *268The said children and heirs, being minors, appeared and answered by then guardian. Fletcher and Butler filed their answer to the original and supplemental bills.

The material facts presented by the record are these:

In March, 1838, Elijah Barratt, Sr., purchased of one Isaac Wood a tract of land in Shelby county, for 2,000 dollars, 1,000 dollars of which was to be paid on the 1st of October, 1839, when the grantee was to receive a deed for the premises. Wood was a resident of Rush county, and some days prior to the last-named period, he went before a justice of that county and executed a deed for land. Being ignorant of Barratt’s first name, the deed was made to him by his surname alone, leaving a blank for his Christian name, which the grantor intended to insert in the deed before he delivered it. Wood delivered the deed to the grantee, intending thereby to vest in him the legal title to the premises, but through neglect omitted the insertion of the grantee’s Christian name. After the delivery, Barratt, with an intent to defraud subsequent creditors, filled up the blank left in the deed with the Christian name of his wife, thereby malting it purport to convey the land therein described to the said Mary C. Barratt. Elijah Barratt, Sr., on the 31st of July, 1841, mortgaged the premises in question to James Fassett & Co., of Philadelphia, to secure the payment of 1,506 dollars. This mortgage was duly recorded. At the February term, 1843, Wood obtained a decree in the Shelby Circuit Court, directing the sale of the land for the payment of 728 dollars, a balance of the purchase-money then unpaid. Ma/nsur, at the same term, recovered a judgment against Barratt for 207 dollars, upon a note given by him in Februm-y, 1840.

The object of the original bill in this case was to subject said land to the payment of Mansur’s judgment. About the 1st of October, 1844, Fassett Co. placed their mortgage in the hands of Fletcher and Butler, attorneys, for collection, upon which suit was commenced in the Circuit Court of the United States for the district of Indiana. On the 20th of February, 1845, the premises were offered for sale on Wood’s decree, and then sold to Fletcher and Butler for *2691,205 dollars. They paid into the hands of the sheriff 876 dollars, the amount of the decree and costs, which left a balance undisposed of, and in their hands, of 328 dollars. The complainant, by his supplemental bill, claims this balance, to be applied in payment of his judgment, and prays a decree against Fletcher and Butler, directing them to pay it over for that purpose. It was shown that at the time of the sale on Wood’s decree, Fletcher, and Butler had notice of Mansur’s original bill, and that he intended to claim any overplus that might remain from the sale of the land on said decree, after it was fully satisfied. But it appears that prior to the filing of the supplemental bill, viz., on the 20th of February, 1845, Fletcher and Butler, pursuant to an agreement between them and Ba/rratt, settled said overplus of 328 dollars, by giving him a credit on the mortgage , of James Fasseit 8f Co., then in their hands for collection. Fasseit 8f Co. were not made parties to the suit, nor does it appear that the deed from Wood was ever delivered to Mary C. Barratt, or that she was ever aware of being the grantee of the land.

Upon a final hearing, the Circuit Court rendered a decree against Fletcher and Butler, in accordance with the prayer of the supplemental bill.

The record presents this question: Had Barratt, at the time he executed the mortgage to James Fassett & Co., a mortgageable interest in the premises ? If he had, then that firm was entitled to the 328 dollars, and it was properly applied as a payment on the mortgage.

The deed was delivered by the grantor to Barratt, with the intention of vesting in him the legal title, and no doubt that was its effect. Though the deed wanted his Christian name, and on that account might be considered ambiguous, still that was an ambiguity that could have been supplied by proof aliunde. The title thus being in Bcurratt, as grantee, could not be divested by the mere insertion of the Christian name of his wife in the blank left by the grantor. That insertion, in our opinion, was a void act, and conveyed to her no title. A husband can not convey lands *270directly to Ms wife, without the intervention of a trustee. 2 Kent’s Comm. 106.

H. C. Newcomb, for the plaintiffs. J. Morrison and S. Major, for the defendants.

Besides, it is evident the deed never was delivered to Mary G. Barratt, nor under her control. Without such delivery, she could acquire no title to the premises. 2 Ind. R. 562. Elijah Barratt was, therefore, the absolute owner of the land. He had a perfect right to execute the mortgage to Fassett & Co. It constituted a specific lien on the premises prior to Mansur’s judgment. It follows that the mortgagees were entitled to the overplus of 328 dollars.

This view of the case shows the decree to be erroneous upon another ground. James Fassett Sf Co. should have been made parties to the suit. Unquestionably, the members of that firm had a direct interest in the object of the bill. A proper decision of the cause could not, therefore, be made, without affording them an opportunity to appear and vindicate their rights. Story’s Eq. Pl., ss. 73, 83, 86, 236, 237.—R. S. 1843, p. 833.

Per Curiam. — The decree is reversed, with instructions to the Circuit Court to dismiss the bill.