Quick v. Milligan

• Decision Date: 10 December 1886
• Citation: 9 N.E. 392,108 Ind. 419
• Parties: Quick v. Milligan.
• Court: Indiana Supreme Court

108 Ind. 419

9 N.E. 392

Quick

v.Milligan.

Supreme Court of Indiana.

December 10, 1886.

Appeal from circuit court, Warren county.J. McCabe and C. F. McCabe, for appellant. C. V. McAdams, for appellee.

Elliott, C. J.

We condense from the special finding of the trial court these material facts: In October, 1884, the appellant, her sisters, Catherine Evans and Sarah Pugh, and their nephew, Samuel Etchison, were the owners in fee of the undivided one-fifth part of a tract of land, and Samuel Etchison was the occupant of the land, yielding rent to his co-tenants. In the month named, Etchison made a contract with each of his co-tenants for the purchase of their respective interests in the land. Pursuant to the terms of the contract, the appellant, who lived in Jasper county, in conjunction with her husband, on the twenty-seventh day of December, 1874, signed and acknowledged a deed conveying the land to Etchison. This deed she sent by mail to her sister Catherine Evans, with instructions to deliver it to Etchison, only upon the condition that he paid the amount of the purchase money of the land, $317, and not to deliver the deed until the money was paid. These instructions were received by Catherine Evans before she gave the deed to Etchison. After these instructions had been imparted to her, Catherine Evans did, in violation of those instructions, deliver the deed to the grantee named in it, without the payment of the purchase money, delivering, at the same time, her own deed, and her sister Sarah also delivered hers. The deeds were all delivered on the false and fraudulent representation of Etchison that he would immediately mortgage the land, thus obtain money, and pay for the land. The delivery of the deed to Etchison was made without the knowledge or consent of the appellant. The deeds received by Etchison were placed on record on the fifth day of March, 1885. After the deeds were recorded, and while Etchison was in possession of the land, it was purchased of him in good faith, without notice of any fraud, for a fair price, fully paid, and in the belief that the deeds were valid, and with knowledge of Etchison's possession, by the appellee, George Milligan, and a deed was executed to him by Etchison.

It is the contention of the appellant that on these facts the law should have been declared to be with her. This contention is asserted by counsel on the strength of the cases which hold that, where a deed is placed in the hands of a third person, to be delivered to the grantee upon the performance of a certain condition by the grantee, a delivery in violation of the condition will not make the deed effective. In support of this position, counsel cite many cases; among them, Berry v. Anderson, 22 Ind. 36;Robbins v. Magee, 76 Ind. 381;Freeland v. Charnley, 80 Ind. 132;Vaughan v. Godman, 94 Ind. 194;Burkam v. Burk, 96 Ind 270;Stringer v. Adams, 98 Ind. 541;Vaughan v. Godman, 103 Ind. 499; S. C. 3 N. E. Rep. 257; Harkreader v. Clayton, 56 Miss. 383; S. C. 31 Amer. Rep. 369; Chipman v. Tucker, 38 Wis. 43; S. C. 20 Amer. Rep. 1; Stanley v. Valentine, 79 Ill. 544;Smith v. South, etc., Bank, 32 Vt. 341;People v. Bostwick, 32 N. Y. 445;Black v. Shreve, 13 N. J. Eq. 458;Dyson v. Bradshaw, 23 Cal. 536;Ogden v. Ogden, 4 Ohio St. 191;White v. Core, 20 W. Va. 272.

We have not the slightest doubt that the abstract proposition stated by counsel is correct, for we understand it to be a rudimentary rule in the law of real property that a deed delivered as an escrow is not effective if placed in the hands of the grantee in violation of a condition upon which the person who holds as an escrow is authorized to deliver it. If this proposition is broad enough to cover the case, the appeal must be sustained; but we cannot grant this essential requisite, for there remains the question of estoppel. It might be conceded that, in ordinary cases, where the grantor remains in possession, the delivery of a deed by one who received it as an escrow, in violation of the condition upon which he was authorized to deliver it, would not make the deed effective to convey title, and yet there might be circumstances which would estop the grantor from asserting title against a bona fide purchaser. Title to land may be transferred and acquired by estoppel. Pitcher v. Dove, 99 Ind. 175, and cases cited. In speaking of the application of the doctrine of estoppel to land, a recent writer says: “The principle applies, irrespective of the nature of the property sold, and the estoppel will be so moulded as to prevent fraud and injustice, in whatever form it may present itself.” Herm. Estop. 1053.

The supreme court of the United States, in discussing the general subject, said: “The vital principle is that he who, by his language or conduct, leads another to do what he would otherwise not have done, shall not subject such person to loss or injury by disappointing the expectations upon which he has acted. It involves fraud and falsehood, and the law abhors both. The remedy is always so applied as to promote the ends of justice.” Dickerson v Colgrove, 100 U. S. 578.

In our own court it has been said: “It is not necessary, in order to the existence of an equitable estoppel, that there should exist a design to deceive or defraud. The person against whom the estoppel is asserted must, by his silence or his representations, have created a belief in the existence of a state of facts which it would be unconscionable for him to deny, but it is not necessary that he should have been guilty of positive fraud in his previous conduct.” Anderson v. Hubble, 93 Ind. 570. This doctrine has been asserted by this court in other cases, and is well sustained by the decisions of other courts. Pitcher v. Dove, supra;Vilas v. Mason, 25 Wis. 310;Foster v. Bettsworth, 37 Iowa, 415;Rudd v. Matthews, 79 Ky. 479;Racine Co. Bank v. Lathrop, 12 Wis. 466;Chynoweth v. Tenney, 10 Wis. 397;Continental Bank v. National Bank, 50 N. Y. 575;Blair v. Wait, 69 N. Y. 113.

The wrong constituting the legal fraud is the repudiation of what the conduct of the party has made appear true to the injury of another, who, in good faith, has acted upon an apparent state of...