62 Ind. App. 8 | Ind. Ct. App. | 1916
In the latter part of the year of 1899, appellant conveyed to appellee, James E. K. France, certain real estate in the city of Fort Wayne, Indiana, by two separate deeds, which, in the court below, he unsuccessfully sought to have declared mortgages, asking also therein for an accounting. The question for review arises upon the action of the court in overruling appellant’s motion for a new trial, under which it is claimed that the deci
A brief statement of the complaint will be helpful to an intelligent understanding of the questions presented, which follows: On September 5, 1899, appellant was indebted to numerous persons in the city of Fort Wayne, among whom were appellees; and in order to secure the indebtedness and provide a fund for the payment thereof, it was agreed between appellant and appellees that appellant would convey his real estate, consisting of several parcels in different additions in the city of Fort Wayne, a major portion of which was platted into lots, to appellees with power to,sell a sufficient amount to satisfy appellant’s indebtedness, with the further agreement that they would account to appellant for the balance of the proceeds not required in the payment of the same, and if any of the real estate remained unsold after the debts had been paid it was to be reconveyed to appellant; that appellees received for real estate sold the sum of $10,000, which was sufficient to and did discharge all of appellant’s indebtedness; that certain described parcels of real estate remained unsold, and a re-conveyance and an accounting were .demanded by appellant, but that such reconveyance and accounting were refused; that the deed so far as it covered the unsold real estate was asked to be declared a mortgage, and that appellees were asked to render an accounting to appellant as to the proceeds that came into their hands, and that a commissioner be appointed to make a conveyance of the unsold real estate on failure of appellees to do so. The issues were closed by an answer of general denial, and from the evidence admitted in support of the issues thus joined, the facts uncontroverted may be summed up as
The relation of attorney and client existing between appellant and appellee France prior to the time of the conveyance in question is a situation that forms the basis of an. argument by appellant that the burden was upon appellee France under the law to show that he acted throughout the entire transaction in the utmost good faith; that he derived no advantage by reason of the superior position he occupied; that the relation being fiduciary, a court of equity will, if .necessary, in order to work out justice as between the parties, decree the existence of a constructive trust. And aside from the contention that the relationship between appellant and appellee France was fiduciary, appellant presses the further contention that the relation that existed between appellant and appellee was that of surety and principal, and while the deeds of conveyance were absolute on their face, they were no more than mortgages indemnifying appellees.
Note. — Reported in 112 N. E. 527. Equitable mortgages, what constitutes, 4 Am. St. 696. Deeds absolute in form with agreements to reeonvey, 17 Am. Dec. 300. Right of an attorney to purchase or lease in his own behalf property which he was under no duty to purchase or lease for his client, 47 L. R. A. (N. S.) 567. Grantee’s oral prdmise to grantor to hold in trust as giving rise to constructive trust, 39 L. R. A. (N. S.) 906. Whether a deed absolute on its face, but intended as a mortgage, conveys legal title, 11 L. R. A. (N. S.) 209. Price as consideration in determining whether a deed was intended as a mortgage, 20 Ann. Cas. 1199.