Moslander v. Beldon
| Decision Date | 21 December 1928 |
| Docket Number | 13,227 |
| Citation | 164 N.E. 277,88 Ind.App. 411 |
| Parties | MOSLANDER ET AL. v. BELDON |
| Court | Indiana Appellate Court |
From Whitley Circuit Court; Arthur F. Biggs, Judge.
Action by Wert A. Beldon against Charles Moslander and another. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Wise & Wise and Holman, Bernetha & Miller, for appellants.
Frank E. Martindale, John W. Kitch, Edward Headley and Walter O Lewis, for appellee.
This is an action by appellee against Charles Moslander, hereafter referred to as "appellant," and Luther R. Cressner to compel the delivery of a deed by which appellant had conveyed certain land in Marshall county to appellee, and which had been deposited in escrow with Cressner. There was a judgment for the plaintiff, hence this appeal.
The only questions presented relate to the sufficiency of the evidence to sustain the finding of the court, and the correctness of the conclusion of law.
The controlling facts, as found by the court, are, in substance, as follows:
On April 23, 1923, appellee and his wife were the owners of 640 acres of land in North Dakota. One-half of said land was owned by appellee, and the other half was owned by his wife. Appellant owned certain land in Marshall county, Indiana. Appellant and appellee, on said day, entered into a written contract for the exchange of the Indiana land for the North Dakota land. This contract recited that appellant had sold the Indiana land to appellee, had executed a warranty deed conveying such land to appellee, and that the deed had been placed in escrow until appellant quieted his title against a claim of Coleman Watkins, after which the deed was to be delivered to appellee, upon appellee paying appellant $ 173, that being the balance due appellant on a contract by which he had agreed to sell the same land to Watkins and which contract appellant had assigned to appellee. It also recited that appellee and his wife had conveyed the North Dakota land to appellant, and that that deed had also been deposited in escrow pending the suit to quiet the title to the Indiana land, and it expressly provided that, upon the said title being quieted as to Watkins, the two deeds should be delivered to the respective grantees, at which time appellee should pay appellant $ 1,850, that being the amount of a mortgage which appellant held on the North Dakota land for money advanced to appellee.
The court further found that, pursuant to the above contract, appellant had signed a warranty deed wherein he conveyed the Indiana land to appellee, subject to the taxes for 1922 and 1923; that appellee and his wife had, pursuant to the contract, signed a warranty deed conveying the North Dakota land to appellant, subject to the taxes for 1922 and 1923, and subject to a mortgage of $ 5,600, which appellant assumed; that Cressner was the scrivener who drafted said deeds; that said deeds were delivered to Cressner to be held in escrow pending the termination of the suit to quiet title; that a decree was thereafter entered in favor of appellee quieting the title to the Indiana land against Watkins, who later surrendered possession of the land. On November 19, 1924, appellee, in response to a letter from appellant's attorney, met with such attorney, and the amount to be paid appellant under the contract was determined and agreed upon, and it was then agreed that appellee should execute and deliver to appellant a promissory note of that date for the amount so found to be due appellant, and that he execute a mortgage on the Indiana land to secure said note; that thereafter, but on the same day, such attorney and appellant and appellee met at the office of Cressner, who, at the request of appellants' attorney, drafted the note and mortgage, which after being executed by appellee were delivered to appellant in full settlement between the parties as agreed upon. This note and mortgage were made out at the direction of appellant, and appellant accepted such note and mortgage from appellee as payment of the amount due him under the contract. Immediately following the execution of such note and mortgage, appellee, at the request of appellant, executed and delivered to appellant a bill of sale for any interest appellee had to the landlord's share of the crops raised on the North Dakota land, after which appellee demanded from appellant and Cressner the deed to the Indiana land, which demand was refused.
Upon these facts, the court concluded that the deed to the Indiana land should be delivered to appellee, and rendered judgment for appellee.
Appellant's first contention is that the court erred in its conclusion of law. In support of this contention, appellant says the contract was not mutually binding, because it was not signed by Mrs. Beldon, and that specific performance could not have been enforced as to her. In support of this contention, appellant cites and relies upon Freeland v. Charnley (1881), 80 Ind. 132; Pulse v. Miller (1881), 81 Ind. 190, and Luzader v. Richmond (1891), 128 Ind. 344, 27 N.E. 736. None of these cases is in point. In the first case, Freeland wrote a letter proposing to buy certain real estate at a designated price. This letter was written to the husband, and agent of the owner, who was a married woman. The agent accepted the proposition, after which the owner and her husband signed and acknowledged a deed naming Freeland as the grantee, and sent the deed to their agent, with instructions to deliver it to Freeland upon payment of the agreed price. With knowledge of these facts, Charnley purchased the property and caused the destruction of the deed to Freeland, after which the latter tendered the agreed price to Charnley and demanded a deed. There was no escrow agreement involved in the case. The party to whom the deed had been sent was the agent of the owner of the land. There was no agreement between the vendor and the vendee that the deed should be placed in the custody of a third party to be delivered to the vendee upon the payment of the purchase money. In Pulse v. Miller, supra, the contract failed to describe the property and for that reason was held to be within the statute of frauds. No question as to the effect of a delivery in escrow and a full performance by the vendee was involved. The facts in the Luzader case were similar to the facts in the Freeland case. No escrow agreement was there involved. The cases cited were correctly decided under the well-established rule that a deed cannot be delivered in escrow to the agent of the grantor, because the possession of the agent is the possession of the grantor. See Ashford v. Prewitt (1893), 102 Ala. 564, 14 So. 663, 48 Am. St. 37; Van Valkenburg v. Allen (1910), 111 Minn. 333, 128 N.E. 1092, 137 Am. St. 561, 126 N.W. 1092.
One of the oldest, yet one of the best, definitions of an escrow is found in Sheppard, Touchstone p. 58, where the author says:
In discussing the delivery to the depositary and the irrevocability of such delivery, the law is stated in 10 R. C. L. § 8, p. 626, as follows: (Our italics.)
"The depositary on an escrow is sometimes spoken of as the agent of the grantor and sometimes as the agent of both parties, and whilst that may be correct, in a limited sense, yet, strictly speaking, he is not an agent at all; he is a trustee of an express trust, with duties to perform for each which neither can forbid without the consent of the other." Seibel v. Higham (1909), 216 Mo. 121, 115 S.W. 987, 129 L. R. A. 502.
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