Egbert v. Egbert, No. 28465.

• Docket Nº: No. 28465.
• Citation: 226 Ind. 346, 80 N.E.2d 104
• Case Date: June 25, 1948
• Court: Supreme Court of Indiana

226 Ind. 346
80 N.E.2d 104

EGBERT
v.
EGBERT et al.

No. 28465.

Supreme Court of Indiana.

June 25, 1948.

Action to foreclose mortgage by William F. Egbert against William C. Egbert, and others. From a judgment for the defendants, the plaintiff appeals. Transferred from the Appellate Court under Burns' Ann.St. § 4-215.

Reversed with directions.

Opinion of Appellate Court superseded, 78 N.E.2d 553.

[80 N.E.2d 104]

Appeal from Noble Circuit Court; Fred L. Bodenhafer, Judge.
Howard Grimm, of Auburn, Otto E. Grant, of Fort Wayne, and Claud V. Barker, of Albion, for appellant.

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

GILKISON, Judge.

The undisputed evidence in this case shows that on February 28, 1926, appellee, William C. Egbert and Alice F. Egbert, husband and wife, for value received executed their first mortgage bond to DeKalb Mortgage Loan Co., trustee or bearer, for $5250, providing for interest and attorney's fees, and due February 28, 1931. This bond was secured by a mortgage, on certain real estate described in the complaint, duly executed by William C. and Alice F. Egbert, in which the mortgagors expressly agreed to pay the sums of money so secured, without

[80 N.E.2d 105]

relief. It was duly recorded March 10, 1926, and has never been released of record. The mortgage bond was later assigned in writing in blank without recourse and delivered to John F. Cameron, who was an uncle of the mortgagor, William C. Egbert.

On May 2, 1934, William C. Egbert and Alice F. Egbert, his wife, executed a warranty deed for the mortgaged real estate to Don F. Cameron and Angus L. Cameron, sons of John F. Cameron, containing the following stipulation: ‘The grantees accept this conveyance subject to a certain mortgage lien thereon in the name of John F. Cameron and subject to ditch and tax liens.’ There is some evidence that this deed was delivered to Don F. Cameron, (on this appeal we shall consider this evidence uncontradicted) and that it was then placed in the safe of John F. Cameron unrecorded, where it remained until after John F. Cameron's death in 1944. It was recorded December 8, 1944. William C. and Alice F. Egbert lived on the real estate and farmed it after they executed the deed, paying rent to John F. Cameron until his death in September, 1944.

During the year 1937, John F. Cameron went to the Egbert home on the farm and in the presence of appellant's father said he wanted to give appellant some papers and handed him an envelope that he said contained a mortgage and mortgage note and said he wanted appellant to have them. Mr. Cameron said, ‘Here is a note and mortgage in here I want you to have.’ At that time appellant looked at the note and mortgage and knew what they were. He was then seventeen years old. He put the note and mortgage away with his school papers and has kept them in his possession ever since.

In the summer of 1945 appellant learned that the Camerons were talking about selling the farm, and with his wife and father, William C. Egbert, called upon Don F. Cameron with respect to buying the farm. Don F. Cameron told them that through Edger Willenar, he and his brother were about to sell the farm to appellees, McEntarfer, and he referred them to Mr. Willenar, who told appellant that they had verbally agreed to sell the farm to the McEntarfers and he thought they should keep their word. Appellant then went back to Don F. Cameron, who told appellant he thought the farm would be a poor investment for appellant.

Thereafter on June 21, 1945, appellant wrote appellee, Don F. Cameron, advising him that some eight years previous John F. Cameron had given him the note and mortgage on the farm, and that he still had them. That the mortgage had never been released. That he felt the donor intended that he, the donee, should realize material gain from the papers, and that he would appreciate hearing from Mr. Cameron on the subject.

On October 18, 1945, appellees, Cameron, conveyed the farm to appellees, McEntarfer, and on April 2, 1946 appellant filed this action to foreclose the mortgage. The appellees, DeKalb Mortgage Loan Company,...