The Mortgage Trust Company of Pennsylvania v. Moore

• Decision Date: 26 April 1898
• Docket Number: 18,408
• Citation: 50 N.E. 72,150 Ind. 465
• Parties: The Mortgage Trust Company of Pennsylvania v. Moore et al
• Court: Indiana Supreme Court

50 N.E. 72

150 Ind. 465

The Mortgage Trust Company of Pennsylvania v. Moore et al

No. 18,408

Supreme Court of Indiana

April 26, 1898

Motion to Modify Overruled. May 17, 1898.

From the Wabash Circuit Court.

Reversed.

Dyer B McConnell and Edgar B. McConnell, for appellant.

H. C Pettit, T. F. Stitt and Royce & Cook, for appellees.

OPINION

Hackney, J.

This was a suit by Thomas W. Moore against his co-appellees and the appellant, The Mortgage Trust Company, of Pennsylvania to enforce a lien upon real estate created by the deed and last will of John Makemson.

The sufficiency of the complaint is the first question presented. It alleged that John Makemson, on the third day of July, 1888, his wife joining, made a deed for one hundred acres of land in Kosciusko county to his son, William G. Makemson, said deed containing a condition that the grantee should execute his note to the grantor's wife for a stated sum per annum during her lifetime, if she survived the grantor. It is further alleged that the deed so made was never in any manner delivered to said grantee, but was retained by said grantor until his death, in February, 1889, during which time he remained the owner and continued in possession of said land; that on the 12th day of February, 1889, said John Makemson executed his last will containing, among other provisions, the following:

"Item 8.--I have conveyed to my son, William G., by deed," the land above referred to, "upon certain conditions therein mentioned, which said deed I retain until my death, and at my death to be delivered to him. This is to be in full of his interest in my estate, and he is to pay my daughter, Alice Moore, twenty-two hundred dollars, and I charge said land with the payment of said sum."

"Item 10.--I will to my daughter, Alice Moore, the sum of twenty-two hundred dollars, which I have herein directed to be paid to her by my son William. * * *."

"Item 12.--I expect to pay my daughter, Alice, on the twenty-two hundred dollars, due her from my son William herein provided the principal of the two notes executed to me by Harvey Oram, bearing date August 11th, 1887, each calling for the sum of $ 766.66, if I collect the sum during my life time, but in case said notes are not collected during my life, then I bequeath them to my son William at my death, who is to collect said notes and pay the amount collected on the twenty-two hundred dollars, which he is to pay to said Alice as herein directed.

"Item 13.--The lands described herein as being conveyed to my son William and my son Homer by deeds, which said deeds I retain during my life, comprise my old home farm. During my life time I am to receive from said lands full maintenance and support, each of my said sons contributing an equal amount. Beyond this amount my said sons are to receive the rents and profits of said lands as their absolute property. To secure my said support and maintenance I retain said deeds during my life time, at my death said deeds to be delivered to my said sons, each of them being bound, however, to perform the conditions contained in said deeds."

After the death of John Makemson, it was alleged, said deed to William G. was delivered and recorded, and said will was duly probated; that William G. paid to Alice Moore, on the charge in said will against said land, $ 1,466.66, but that no other sum was ever paid thereon, although demanded of said William by said Alice; that said William sold and conveyed said lands to Homer E. Makemson, subject to said charge and lien, said Homer agreeing and undertaking to pay the same. It is alleged also that said Alice had died, leaving said Thomas as her only heir; and that no debts remained against her estate. That he, said Thomas, had demanded from William and from Homer the balance of said charge. Sarah A. Makemson, the mother of said Alice, Homer E. Makemson, and his wife, and the appellant, were made defendants, with a general allegation of an adverse claim which was junior to the plaintiff's claim to said balance.

The objections to the complaint, as stated by counsel for appellant, are, "(1) that it shows on its face that the conveyance was by deed and not by will. (2) It shows no acceptance of the legacy, as a charge upon the land, by William G., of which the Mortgage Trust Co. had notice."

It is argued by appellant's learned counsel that the deed and will, having been executed at different times, should not be construed together; but that the deed should be regarded as having conveyed title to William, and that the testator was powerless, by any act subsequent to the conveyance, to place a charge upon the land. It appears from the allegations of the complaint, and this is admitted by appellant's demurrer, that the deed was only made and acknowledged before the grantor's death, and was, in no way delivered to William. Delivery, as has so often been decided, is an essential part of the execution of a deed of conveyance. There having been no delivery, there was, without the provisions of the will as to delivery, no conveyance, and the unexecuted deed, upon the death of the maker, would have been void, for the want of delivery.

This conclusion, from a consideration of the deed apart from the will, would be most disastrous to any claim upon the land by the appellant, whose sole right depends upon William's ownership, and a mortgage by his grantee. The fact that the deed was made prior to the making of the will does not defeat a consideration...