Wilson v. Jinks
| Decision Date | 14 February 1917 |
| Docket Number | No. 9239.,9239. |
| Citation | 63 Ind.App. 615,115 N.E. 67 |
| Parties | WILSON et al. v. JINKS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Decatur County; Hugh Wickens, Judge.
Ejectment by James Jinks against Irene Wilson and others. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.Lon Conner, of Connersville, and M. E. Forkner, of New Castle, for appellants. I. N. McCarty, of Brookville, and G. R. Foster, of Metamora, for appellee.
This is an action in ejectment to recover possession of 78 1/2 acres of real estate in Franklin county, Ind. The complaint is in the usual form and was answered by a general denial. The case was tried by the court, and upon request a special finding of facts was made, on which conclusions of law were stated in favor of appellee, plaintiff below, for possession of the real estate described in the complaint and for $250 damages for its unlawful detention. The judgment follows the conclusions of law. The only errors assigned challenge the correctness of the conclusions of law.
The finding of facts, in substance, states that on September 27, 1913, appellant Irene Wilson was the owner of the real estate in controversy, and on that day made a parol agreement to sell the same to appellee for a consideration of $2,500, part of which was to be paid by appellee assuming or paying a mortgage on the real estate for $500; that on the date aforesaid appellants husband and wife duly signed and acknowledged a warranty deed conveying said real estate to appellee; that appellant Irene Wilson then delivered said deed to appellee to be taken by him and used to procure a loan to him, the proceeds of which were to be used to pay off the existing mortgage on said real estate; that appellee took the deed to Rushville, Ind., and there procured a loan through one Ben Miller, who was the agent of the Rush County Loan Association, and thereupon appellee left said deed with said loan agent to be duly recorded, which was accordingly done; “that said deed was delivered to said plaintiff under an agreement that, if he should be unable to secure a loan from said Miller as such agent, said deed should be returned to defendant Irene Wilson;” that the proceeds of the loan so obtained were used by appellee to pay said mortgage indebtedness, and he did pay the same in full to the Farmers' Bank of Franklin County, Ind., the owner and holder thereof; that appellants accepted from appellee as part payment for said real estate a wagon at the agreed price of $85; that on October 14, 1913, appellee paid to said Irene Wilson $515 on the purchase price of said land, and on October 15, 1913, executed to said Irene Wilson his promissory note for $900, due in one year from date, which note she received and retained in her possession until November 21, 1913, when through her attorneys she returned the note to appellee; that appellee claimed the total purchase price of said land was $2,000, and he sent the note aforesaid as payment of the balance in full of the purchase price of the land, but the same was not so accepted; that on November 21, 1913, appellant Irene Wilson began suit against appellee and the Rush County Mortgage & Loan Association, and alleged in her complaint her ownership of the land and that on September 27, 1913, “she sold and conveyed said real estate to” appellee at and for the price of $2,500; that he had paid thereon the sum of $1,100, and she demanded payment of the balance of $1,400 which appellee had refused, and she asked that the court adjudge in her favor a vendor's lien against the real estate for the sum aforesaid with accrued interest thereon; that on and prior to March 23, 1914, appellee demanded possession of said real estate from appellants, which was refused, and he was excluded therefrom by appellants, who retained and still retain possession thereof; that the reasonable rental value of said real estate, for the use thereof from October 1, 1913, to the time of the trial in January, 1915, was $250.
The judgment was rendered on January 15, 1915. The substance of the conclusions of law is as follows: (1) That plaintiff (appellee) is entitled to recover possession of the real estate; that the defendants (appellants) unlawfully and without right have kept him out of the possession thereof; (2) that plaintiff is entitled to recover from defendants damages, for the unlawful detention of the possession of said real estate, the sum of $250.
Appellants contend that the court erred in its conclusions of law because the finding of facts shows that the deed was never delivered to appellee so as to vest title in him, and because there is no finding that appellee was the owner of the property and entitled to the possession thereof; that the agreement to pay and the agreement to convey are dependent covenants, and the delivery shown by the finding is not sufficient to entitle appellee to possession of the land without full payment of the purchase money.
[1] Where there is a valid and effective delivery of a warranty deed to the grantee by the grantor, the title passes whether the purchase money is or is not paid or secured, and such deed may be recorded without further or express consent of the grantor, for such delivery places the deed entirely beyond the control of the grantor. Ronan v. Meyer, 84 Ind. 390-393.
The finding of facts shows a delivery of the deed to appellee, by appellants, conditioned only on its return if the loan was not secured on the land. The facts show conclusively that the loan was so obtained and the money applied in strict compliance with the agreement of the parties, so that the only condition imposed by the grantors was satisfiedin every particular, as contemplated by appellants, and the deed was therefore in the rightful possession of appellee with no right or authority in appellants, or either of them, to claim or recall it.
The intention of the grantor to give effect to the deed is essential to a valid delivery,...
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