Lucas v. Hendrix

• Citation: 92 Ind. 54
• Decision Date: 12 December 1883
• Docket Number: 10,014
• Parties: Lucas v. Hendrix et al
• Court: Supreme Court of Indiana

92 Ind. 54

Lucas v. Hendrix et al

No. 10,014

Supreme Court of Indiana

December 12, 1883

From the Huntington Circuit Court.

Judgment reversed at the appellees' costs, with instructions to overrule the appellees' demurrer to the appellant's complaint and for further proceedings in accordance with this opinion.

W. H Trammel, for appellant.

L. P Milligan, for appellees.

OPINION

Hammond, J.

Complaint by the appellant against the appellees, as heirs and devisees of Isaac Hendrix, deceased, to review a judgment rendered in the court below in favor of said decedent in his lifetime, against the appellant and others.

The grounds for review, as claimed in the appellant's complaint, are that the complaint of Isaac Hendrix in the former action did not state facts sufficient to constitute a cause of action; that the court erred in sustaining the demurrer of said Isaac Hendrix to the 2d, 3d and 4th paragraphs of the appellant's answer to said complaint, and erred in rendering judgment against the appellant in the former case for costs.

A demurrer for the want of facts, etc., was sustained to the appellant's complaint for review, and this ruling is the only error assigned in this court.

In the case sought to be reviewed, Isaac Hendrix was plaintiff. Benjamin F. Hendrix and his wife and the appellant were defendants. The complaint in that case was based upon a deed executed July 19th, 1873, by Isaac Hendrix to Benjamin F. Hendrix. After the preliminary averments as to the execution of the deed, the complaint stated the plaintiff's cause of action as follows:

"Which conveyance was made upon a condition subsequent to this, to wit: The said Benjamin F. Hendrix agreed to pay to the plaintiff five annual payments of $ 440, to be paid at the end of each year, and on failure to pay the said several sums at the end of each year, then the whole sum of $ 4,400 was to become due and collectible, with ten per cent. interest and attorneys' fees, which plaintiff avers were reasonably worth $ 200, and the plaintiff avers that he demanded each and every payment as aforesaid, but that the said Benjamin F. Hendrix wholly failed and neglected to pay the said several sums, or any of the same, or any part thereof, and suffered himself to become wholly insolvent and unable to pay any part of said sum of money; wherefore plaintiff says that there is a breach of the conditions. And plaintiff avers that afterward, to wit, on the 20th day of July, 1876, he entered upon said premises and took possession of the same and holds the same, a copy of which conveyance is filed herewith, and the plaintiff avers that the said Frances Hendrix is the lawful wife of said Benjamin F. Hendrix. The plaintiff further avers that Thomas L. Lucas claims to have some interest in said land, and is made a defendant to answer to his interest, and on final hearing of this cause the plaintiff prays that said deed be cancelled and the title to said lands quieted in the plaintiff and all other relief to which plaintiff is entitled in the premises."

A copy of the deed was filed with the complaint. It was a warranty deed in the statutory form, the consideration expressed therein being $ 4,400. The reservation or conditions set out in the deed, following the description of the real estate, were as follows:

"This conveyance is made subject to the following conditions, to wit: The grantor retains an interest of $ 440 per annum for the term of five years, which it is stipulated the grantee shall pay to said grantor, and in case of failure of the annual payment of said sum at the end of each year for the period of five years and five annual payments, then the said sum is to become due, and payment may be enforced for said sum, or as much thereof as may be due, in any court of competent jurisdiction, with interest at ten per cent. and attorney's fees; and upon making of said five payments aforesaid of $ 440 each, then the grantee is to become the owner in fee of the above described premises, and the consideration mentioned in this deed, to wit, $ 4,400, is to be taken, counted, and considered as an advancement on the part of the said Isaac Hendrix to the said Benjamin F. Hendrix, and to be reckoned in the final settlement of his, Isaac Hendrix's, estate."

As the complaint averred that the grantor Isaac Hendrix, at the time of the execution of the deed, owned the land in fee simple, we are of opinion that the allegation "that Thomas L. Lucas claims some interest in said land and is made a defendant to answer to his interest," shows sufficiently that Lucas' interest, whatever it may have been, was subordinate to the rights of the said grantor.

The reservation in the deed is not a condition subsequent; in legal effect it is simply a mortgage. In Carr v. Holbrook, 1 Mo. 240, it was held that a deed made for lands, to be absolute on the payment of certain notes, but in default of payment to be void, was to be considered a mortgage. Pugh v. Holt, 27 Miss. 461, decides in the same way. Jones, in his work on Mortgages, vol. 1, sections 228-9, says:

"228. An express reservation in a deed of a lien upon the land conveyed creates an equitable mortgage, and when the deed is recorded every one is bound to take notice of the incumbrance. * * * A stipulation in a deed, that the titles shall not vest in the grantee until the purchase-money is paid, amounts in equity to a mortgage. So does a deed providing that it shall be absolute on the payment of certain notes, but in default of payment shall be void.

"229. A lien reserved is a lien by contract. A lien for the purchase-money expressly reserved by a vendor in his deed of conveyance is a lien created by contract, and not by implication of law. * * * It is really a mortgage. * * * It is governed by the same rules that a mortgage is. It passes by an assignment of the notes secured by it. It is foreclosed as a mortgage; and there is the same right of redemption for a limited period after a foreclosure sale. 'The reservation of the vendors' lien in the deed of conveyance,' says Mr. Justice Bradley, of the Supreme Court of the United States, 'is equal to a mortgage taken for the...