155 Ind. 497 | Ind. | 1900
— Which in point of time was first delivered, a mortgage securing an indebtedness, or a deed conveying the legal title to the same lands ? This is the real question presented by the record and is decisive of all. It arises under a motion for a new trial upon the ground that certain facts returned in the special finding relating to the delivery of the mortgage are not sustained by sufficient evidence and are contrary to law. This calls for a review of the special finding. A special finding must be construed as a whole, and not in fragmentary parts. Each part must be construed in connection with every other part relating to the same transaction, and, if taken as a whole, the finding legitimately supports the judgment, it must stand. Cleveland, etc., R. Co. v. Closser, 126 Ind. 348, 367, 22 Am. St. 593; Brown v. Estate of Brown, 2 Ind. App. 435, 438; Elliott’s Gen. Prac., §973.
The rule which should guide an appellate tribunal in reviewing a special finding of facts by a court is the same as that which prevails with respect to a verdict of the jury. It is this: “Where the finding is supported by the evidence it will not be disturbed, but if entirely unsupported the finding will not be allowed to stand.” Elliott’s Gen. Prac., §979; Devlin v. Quigg, 44 Minn. 534, 47 N. W. 258, 20 Am. St. 592; Davidson v. Morrison, 86 Ky. 397, 407, 5 S. W. 871, 9 Am. St. 295.
There was evidence in support of these facts: August 8, 1893, Harriet H. Burget, hereinafter called Mrs. Burget, then in life, was the owner of the land in controversy. She and Harriett Merritt, her step-granddaughter and who lived with her on the farm in the same house, and hereinafter called M!rs. Merritt, had in 1889 become jointly indebted to Emanuel Burget on a promissory note for $3,000, which note was due and unpaid. A few days before said August 8th, Emanuel Burget having solicited payment of
Whereupon, on August 8th, Emanuel Burget and Sea-bury Merritt, a notary public, called at the residence of 'Mrs. Burget and Mrs. Merritt, and Mrs. Burget signed a note for $2,050, payable to Oliver Gard, and signed and acknowledged a mortgage on said land to secure said note, and, after completion of the instruments, handed the same to Emanuel Burget, who thereupon entered a credit on said $3,000 note for $2,050, — all with the full knowledge at the time of Mrs. Merritt, who had been made the beneficiary of said lands under the executed will of Mrs. Burget.
Within the following thirty minutes after the delivery of the note and mortgage to Emanuel Burget, Mrs. Burget signed, acknowledged, and delivered to Mrs. Merritt a deed conveying to her the legal title of the mortgaged premises, together with other real estate, and thus stripped herself of all property except a small amount of household goods; and upon the evening of the same day, August 8th, Mrs. Merritt, through the agency of Seabury Merritt, caused her deed to be recorded in the proper records of the county. Emanuel Burget held possession of the note and mortgage until the following day, August 9th, when he took them to the city of Frankfort, and presented them to Oliver Gard, who inspected them, and, finding them executed in due form, gave Emanuel Burget his check for $2,050, and at once, August 9, .1893, filed the mortgage for record in the recorder’s office of the county.
We have found no evidence in the record that Mrs. Burget actually delivered the mortgage to Gard, the nominal mortgagee, on August 8th, and before the execution of the deed to Mrs. Merritt as the finding states; nor do we deem such
Delivery becomes effectual when the grantor surrenders dominion of a complete instrument with intent thereby to make it operative. Berry v. Anderson, 22 Ind. 36, 39; Somers v. Pumphrey, 24 Ind. 231, 239; Fewell v. Kessler, 30 Ind. 195; Hotchkiss v. Olmstead, 37 Ind. 74, 84; Nye v. Lowry, 82 Ind. 316, 320; Stokes v. Anderson, 118 Ind. 533, 545, 4 L. R. A. 313; Anderson v. Anderson, 126 Ind. 62, 66; Osborn v. Eslinger, ante, 351.
It is important to bear in mind that, under the agreement, Emanuel Burget was to have all the money received from the loan for application upon his claim, and Mrs. Burget was to have only a credit for the amount upon her and Mrs. Merritt’s note. Mrs. Merritt was jointly answerable for the debt to be discharged. The farm mortgaged was willed to. her, and was liable for the debt whether as the property of Mrs. Burget, or ultimately as the property of Mrs. Merritt. Both were equally interested in the payment of the debt, one with a vested, the other with a prospective interest in the land. There was also evidence tending to show that Mrs. Merritt was the principal actor for her grandmother in arranging for, and in the consummation of the Gard loan, and had full knowledge of the execution of the mortgage at the time it was done, and at the time she accepted her deed, a few minutes later. And these two transactions, accomplished within the same hour, at the same place, and before the same officer, considered together, clearly indicate a purpose on the part of Mrs. Burget not only to provide for her debts, but to consummate by deed what she had intended by will, her design to confer the remainder of her estate upon her granddaughter. With this object in view Mrs. Burget signed and acknowledged the mortgage, and when
There is abundance of evidence in support of the finding that Mrs. Burget was the owner of the land when she exe
We find no available error in the record. Judgment affirmed.