Whelan v. Tobener

Ellison, J.

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 consideration of $2,205. But defendant further alleged that though he purchased the property for that sum it was1 “incumbered by a large amount of tax liens both general and special and he applied to plaintiffs through his brother, William- Tobener, for money with which to extinguish said liens. That it was thereupon agreed that a deed should be executed by the plaintiffs to secure the defendant for the money necessary for the purpose aforesaid upon the consideration and agreement by plaintiffs that a suit in partition to perfect the title to said lot, which had been instituted, should be prosecuted to a successful termination, and that there was but one heir who was not of age and that the title vested in said heir should be conveyed to the defendant, so that a merchantable title to said lot in fee should be vested in defendant within three months from the date of said deed; that plaintiffs should remain in possession thereof until the title was perfected, as aforesaid, in defendant, when, after defendant would pay to the plaintiffs said sum of twenty-two hundred and five ($2,205) dollars, less the advance made and the interest thereon up to the time when a perfect title should be conveyed to defendant within the time stated aforesaid.”

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.

EpirouoEvary?ds: There was an interlocutory judgment for defendant and the cause was referred to ’a referee for an adjustment of account between the parties. The referee’s adjustment resulted in a finding for defendant in the sum of $1,529.83. This was reduced by the court to the sum of $1,279.10, for which judgment was entered against plaintiff Michael Whelan and defendant was ordered to convey the property to said Michael on his paying defendant the sum last mentioned. The full title to the property was in plaintiff Michael Whelan, though it seems to have been thought by all the parties at the time of the transaction that two infants had an interest in it. Defendant’s position in the case is not made as clear and definite as we would like. He seems to concede that there was a sale at an agreed price. But that it being thought that the two infants had an apparent interest in the property, there was an agreement that the titlfe should be perfected within from three to six months, and that as there were heavy tax liens against the property he was to, and did, take a general warranty deed to the property to secure himself for the advance made in discharging the taxes. He, however, testified when asked if the money paid by him in payment of the taxes was a loan that it was “not exactly a loan, I bought the property and advanced that much money on it.” “ It is apparent from all this testimony that he purchased the property and that he made offers of selling it. The testimony in defendant’s behalf leaves no doubt whatever of these facts. In our opinion it was error for the court to pertnit oral evidence aliuncle the deed to- show that there was an agreement or understanding that th.e title should be perfected. The deed, besides being the writing and presumed to contain the entire contract, itself contained the written stipulation as to title. It was a warranty deed whereby all defects of title, if any, were to be made good by the grantor. There ought not to be any question at this day, that a deed, like other written contracts will be presumed to contain the contract of the parties and that in the absence of fraud, accident or mistake it can not be contradicted, varied or altered by oral evidence and that all prior or contemporaneous matter will be held to be either rejected by the parties or merged in the writing. This rule is as frequently applied to deeds as to other written contracts. Williams v. Higgins, 69 Ala. 517.

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 and interesting consideration of the subject. To be an escrow the deed must have been delivered to some stranger, by him to be delivered to the grantee upon the happening of the conditions. Bouvier’s Law Diet.

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 account of the supposed condition of the title. So that we have to conclude from the evidence in behalf of defendant that the transaction was a sale outright and not a loan of money. Entertaining the foregoing views we conclude the judgment -below was for the wrong party. The plaintiff should recover.

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.

All concur.