63 Ind. App. 615 | Ind. Ct. App. | 1917
This is an action in ejectment to recover possession of seventy-eight and one-half acres of real estate in Franklin county, Indiana. The complaint is in the usual form and was answered by a general denial. The ease was tried by the court, and upon request a special finding of facts was made, on which conclusions of law were stated in favor of appellee, plaintiff below, for possession of the real estate described in the complaint and for $250 damages for its unlawful detention. The judgment follows the conclusions of law. The only errors assigned challenge the correctness of the conclusions of law.
The finding of facts, in substance, states that on September 27, 1913, appellant Irene Wilson was the owner of the real estate in controversy and on that day made a parol agreement to sell the same to appellee for a consideration of $2,500, part of which was to be paid by appellee assuming or paying a mortgage on the real estate for $500; that on the date aforesaid appellants, husband and wife, duly signed and acknowledged a warranty deed conveying said real estate to appellee; that appellant Irene Wilson then delivered said deed to appellee to be taken by him and used to procure a loan to him, the proceeds of which were to be used to pay off the existing mortgage on said real estate; that appellee took the deed to Rushville, Indiana, and procured a. loan through one Ben Miller, who was the agent of the Rush County Mortgage and Loan Association, and appellee left said deed with said loan agent to be duly recorded which was accordingly done; “that said deed was delivered to said plaintiff under an agreement, and if he should be unable to secure a loan from said Miller as such agent, said
The judgment was rendered on January 15, 1915. The substance of the conclusions of law is as follows: (1) That plaintiff (appellee) is entitled to recover possession of the real estate; that the defendants (appellants) unlawfully and
Appellants contend that the court erred in its conclusions of law because the finding of facts shows that the deed was never delivered to appellee so as to vest title in him and because there is no finding that appellee was the owner of the property and entitled to the possession thereof; that the agreement to pay and the agreement to convey are dependent covenants and the delivery shown by the finding is not sufficient to entitle appellee to possession of the land without full payment of the purchase money.
The finding of facts therefore sufficiently shows the ultimate fact of delivery to warrant the court in considering it, though such fact may be imperfectly stated. Harris v. Riggs (1916), ante, 201, 112 N. E. 36, 38, and cases cited; Shedd v. American Maize, etc., Co. (1915), 60 Ind. App. 146, 163, 108 N E. 610, and cases cited; Knight v. Kerfoot (1915), 184 Ind. 31, 110 N. E. 206, 209; Mount v. Board, etc. (1907), 168 Ind. 661, 665, 666, 80 N. E. 629, 14 L. R. A. (N. S.) 483.
Our discussion of the execution and delivery of the deed is conclusive upon the proposition that the findings show appellee to be the owner in fee simple of the real estate, but there is no express finding of the fact that he was entitled to the possession thereof when this suit was begun. This is a possessory action, and to entitle the plaintiff to judgment the court properly stated as a conclusion of law that he was entitled to recover the possession of the real estate.
Appellee contends that this is all that is necessary and that the facts found fully warranted the trial court in drawing such-conclusion of law; that no other inference can be drawn from the facts found, other than that appellee was and is entitled to the possession of the real estate; that the essential conclusion of law is identical with the fact of appellee’s right to possession and that its statement as a conclusion of law is supported by the decisions, and among them are the following: Crawfordsville Trust Co. v. Ramsey (1913), 55 Ind. App. 40, 73, 74, 100 N. E. 1049, 102 N. E. 282; DePauw Plate Glass Co. v. City (1898), 152 Ind. 443, 453, 52 N. E. 608; Indiana Trust Co. v. Byram (1905), 36 Ind. App. 6, 10, 72 N. E. 670, 73 N. E. 1094.
The contention has merit and has been applied in cases bearing some analogy to the one under consideration. Furthermore, it is quite apparent that the principal controversy at the trial was over the delivery of the deed, which question we have decided adversely to appellant’s contention. But the decisions do not recognize the delivery of an unconditional warranty deed or the ownership of the fee-simple title, in suits of this kind, as necessarily entitling the holder of such deed or title to the immediate possession of the real estate, and under the statute, supra, have held the statement of the fact of the right of possession to be essen
For the want of a finding of the fact that appellee was entitled to the possession of the real estate when this suit was begun, we are compelled by the foregoing authorities to hold the conclusions of law unwarranted and therefore erroneous; but the facts of the case are such as to convince the court that the ends of justice will be subserved by ordering a new trial rather than by directing a restatement of the conclusions of law. McCord v. Bright (1909), 44 Ind. App. 275, 291, 87 N. E. 654.
The judgment is therefore reversed and a new trial ordered.
Note.—Reported in 115 N. E. 67. Deeds: delivery to grantee, subject to future extrinsic condition, 16 L. R. A. (N. S.) 941; what constitutes delivery, 53 Am. St. 537. See under (1, 2) 13 Cyc 504; (5) 15 Cyc 169.