Plaintiffs instituted this action to enforce a vendor’s lien on the real estate described in their petition. Defendant filed an answer in which he admitted a conveyance to him from plaintiffs by warranty deed of the property described for the considera
The answer further alleges that he made advances on said property to extinguish said liens to the amount of $1,375. That the warranty deed was made as security for such advances and to secure the performance of the agreement as to the perfecting of title within the six months stated in the answer to be the limit of time.
Dd?ív¿r!fac°cl¿tance' Prom the contest in this case, at least as developed in the briefs presented, we take it that it is a part of defendant’s contention that the deed delivered to him was in escrow, which must mean that it was not to be a deed unless the matters of agreement to be performed by plaintiffs were complied with; that is, the supposed defect in title perfected. The facts in the ease as stated by defendant himself rebut the idea of the deed being a mere escrow. He states that he accepted it as a present operative conveyance securing him for money advanced on the taxes. An escrow takes effect upon a delivery after the conditions upon which it has been delivered have been complied with. The condition here, it is asserted, was perfecting the title. Yet it is contended that the deed was delivered to defendant to secure him for money advanced until the title was perfected. If the latter statement is true, the deed could not be an escrow since it took effect on delivery to the grantee as an operative conveyance.
A-TTstopAi': But aside from this defendant being the grantee named and having accepted of the delivery, can not be heard to say that it was not an operative conveyance. When a deed is delivered over to the grantee, the grantor having no further control or dominion over it, .it becomes an operative deed and can not be an escrow. Miller v. Fletcher, 27 Grrat. 403; McCann v. Atherton, 106 Ill. 31. These cases make plain the foregoing statement of the law. The former is an exhaustive
mOTtg^e1® Ieance?f ev1' We will now consider whether the deed was a mortgage, notwithstanding it was absolute on its face. It must be conceded by all that to permit a ^eed conveying real estate with all the formality required of such an instrument including its comprehensive warranties and covenants to be shown by oral evidence to be a mere security for money loaned; is a lengthy step towards the insecurity of so important a document. Yet the law recognizes that it may be done. But while permitting it to be done, the law also recognizes the great danger which exists by so allowing it and demands that the evidence, whereby the deed absolute is made to contain a defeasance, must be of such cogent and overwhelming character as to leave no room for reasonable doubt. Worley v. Dryden, 57 Mo. 226; King v. Greves, 42 Mo. App. 168; Bender v. Markle, 37 Mo. App. 234.
It is true that if in a controversy of this nature it should fully develop that at the inception the grantor was seeking and. desiring a loan and obtains money from the grantee, the courts will incline willingly to the theory, that the deed, though absolute, was intended as a mortgage, unless it be made to appear clearly that the parties subsequently changed their minds. Codd v. Day, 106 Mo. 278. But no such pretense is made in this case. The evidence of defendant and of his brother, who acted as his agent, clearly showed the proposition from the start was a sale. Not only that, but defendant testifies he undertook to sell the property more than once and was prevented on
An examination of the evidence discloses that this is no hardship on defendant since his testimony shows that he purchased with a view of what he could make out of the property. That in point of fact he had from the delivery of the deed to him the full title to the property and has now that title with the possession. He states that he could have sold at an advance at different times if. the title had been perfected. The fact that he really had a perfect title should have become known to him in these years that he has had a deed to the property and occupied it. But whether it should or not the law as applied to the facts shown by the record is with the plaintiff and the judgment will be reversed with directions to enter judgment for the plaintiff for the balance due, and for the enforcement of the vendor’s lien as prayed for. That balance we find to be $830.31 with interest made up as follows: Purchase price of property was $2,205, reduced by $1,064.69 paid thereon, leaving the sum of $1,140.31 as balance of purchase price. Prom that amount there should be deducted the sum of $310 rents of property collected by plaintiff after sale, leaving the balance -aforesaid of $830.31. To this latter sum should be added interest at the rate of six per cent from date of sale to the time of entering the judgment.