Egbert v. Egbert

• Decision Date: 25 June 1948
• Docket Number: No. 17737.,17737.
• Citation: 78 N.E.2d 553
• Parties: EGBERT v. EGBERT et al.
• Court: Indiana Appellate Court

78 N.E.2d 553

EGBERT

v.EGBERT et al.^*

No. 17737.

Appellate Court of Indiana, in Banc.

April 14, 1948.

Transferred to Supreme Court June 25, 1948.

Appeal from Noble Circuit Court; Fred L. Bodenhafer, Judge.

Action by William F. Egbert against William C. Egbert and others to foreclose a real estate mortgage. From an adverse judgment, plaintiff appeals.

Judgment affirmed.Howard Grimm, of Auburn, Otto E. Grant, of Fort Wayne, and Claude V. Barker, of Albion, for appellant.

Husselman & Husselman and Daniel M. Link, all of Auburn, and Mountz & Mountz, of Garrett, for appellees.

ROYSE, Judge.

For many years prior to February 28, 1926, the appellee William C. Egbert and his wife Alice owned and lived on certain real estate in DeKalb County, Indiana. This property had been encumbered by a mortgage since they acquired it. On said last mentioned date they executed a mortgage to the DeKalb Mortgage Loan Company, Trustee, to secure the payment of their first mortgage bond in the sum of $5250. Shortly thereafter the Mortgage Company transferred and assigned this mortgage bond without recourse to one Dr. John F. Cameron who was the uncle of the appellee William C. Egbert. The appellant herein is the son of appellee Egbert. In the year 1934 appellee Egbert and his wife conveyed this real estate to the appellees Don F. Cameron and Angus L. Cameron, who were the sons of John F. Cameron. The deed provided the grantees accept this conveyance subject to a certain mortgage lien thereon in the name of John F. Cameron. Contemporaneously with the execution of this deed appellees Cameron entered into an agreement with appellee Egbert and his wife by which they agreed to convey said real estate to said Egberts if they paid the principal and interest due on said mortgage by April 1, 1935. Appellant was present when the deed was signed. He did not recall seeing his parents sign the re-purchase agreement but heard it discussed and recognized their signatures on the agreement. The Egberts did not make the payment provided for in the contract. They lived on the premises and paid rent to Dr. John F. Cameron until his death in September, 1944. The deed was not recorded until after the death of Dr. Cameron. He gave it to his son Don some time after it was executed, who placed it in his father's safe. At that time the son did not know it had not been recorded.

In the year 1937 John F. Cameron came to the Egbert home and gave to appellant an envelope containing the above mentioned mortgage and bond, and told appellant he wanted him to have them. Since that time appellant has had the possession of these instruments. Appellant at this time was seventeen years old. He did not know the intention of his uncle. At the time he did not know the papers had any particular value. He knew they were the mortgage and bond of his parents.

In the spring of 1945 appellant heard from his father, appellee Egbert, that the appellees Cameron were going to sell the farm. Appellant, his wife and father called on appellee Don Cameron and sought to make a contract to purchase the farm. They were informed by said appellee that an oral agreement had been made to sell the farm to the appellees McEntarfer, but if McEntarfers would release him from his agreement he might sell them the property. The McEntarfers insisted on making the purchase and did so. In this conversation appellant said nothing about owning the mortgage and bond. He said he had forgotten about them. Appellant then found the papers in his home and submitted them to his attorney, Mr. Grimm. He then caused the following letter to be written to appellee Don Cameron:

‘D. F. Cameron

‘Fort Wayne, Indiana

‘Dear Don:

‘As you stated during our conversation at Angola I contacted Lyle McEntarfer who indicated his desire to purchase the farm. I had almost dismissed this matter from my mind when I remembered that several, possibly eight years ago this fall, your father presented me with papers pertaining to the farm. At the time I had thought the papers to be valueless because of the property having been deeded to you and Angus.

‘I investigated these papers and found them to be, one a mortgage...