DISSENTING OPINION. As disclosed by the majority opinion, the court found the facts specially. The sufficiency of the evidence to support any finding is not questioned. The exceptions are taken to the conclusions of law.
The facts found are as follows:
"1. — That defendant, Isaac Bloom and Fannie Bloom on the 18th day of October, 1932, and for some years prior thereto were, and are now, husband and wife; that plaintiff, Irene Shirley Bloom Bellin, is the daughter of Isaac Bloom and Fannie Bloom, and was born in November, 1908.
"2. — That on the 18th day of October, 1932, and for a number of years prior thereto, said Isaac Bloom and Fannie Bloom were the owners as tenants by the entireties of the following described real estate, to-wit:
Lot Forty (40) in block sixty-four (64), as marked and laid down on the recorded *Page 670 plat of Gary Land Company's First Subdivision in the city of Gary, Lake County, Indiana.
"3. — That in the year 1932 said real estate was encumbered by mortgage to the Home Savings and Loan Association of Gary, Indiana, securing a stock loan of $6,000.00 upon which on October 18th, 1932, there was unpaid the sum of $1,600.00.
"4. — That defendant was then personally indebted on accounts payable contracted in his coal business and otherwise in a large amount and together with his said wife upon mortgages covering other real estate, the value of which was greatly in excess of such mortgage indebtedness.
"5. — That at said time banks and building and loan associations were failing and defendant became alarmed and thought that if said Home Savings and Loan Association should fail, both he and his said wife would lose the stock payments theretofore made and said mortgage would remain totally unpaid. He also was apprehensive concerning action his own individual creditors might take and that the equity in said real estate so held by them might become involved.
"6. — That for the better protection of said equity of himself and wife, said defendant determined on or about October 18th, 1932, to refinance said $6,000.00 mortgage for the unpaid balance of $1,600.00 and to transfer the record title to said real estate to his said daughter, then Irene Shirley Bloom, until such time as conditions should become settled and improved and the claims of creditors satisfied.
"7. — That thereupon defendant and his said wife pursuant to said determination signed and acknowledged a deed to said real estate purporting to convey the *Page 671 same to his said daughter who thereupon executed a new mortgage for $1,600.00 to said association representing the unpaid balance upon the prior mortgage after stock payments had been fully credited thereon, whereupon said $6,000.00 mortgage was released.
"8. — That at the time of the purported conveyance mentioned in Finding 7, it was understood and agreed between defendant and his said wife and his said daughter, that defendant would make payment of the said new $1,600.00 mortgage and that when requested by the defendant so to do said daughter would reconvey said real estate to her said father and mother, as tenants by the entirety, as the same had been heretofore held by them, and that pending said reconveyance, the defendant would retain possession of said real estate and exercise all the privileges of ownership thereof.
"9. — That said defendant has paid said $1,600.00 mortgage and has retained possession of said real estate hitherto, kept the same insured and repaired, paid the taxes, and has continuously exercised all the privileges and obligations of ownership thereof to this date.
"10. — That at the time of the purported conveyance to plaintiff aforesaid, it was not the intention of defendant or his said wife to transfer said real estate to plaintiff as her property or of plaintiff to receive it as such.
"11. — That there was no consideration whatever for said purported conveyance.
"12. — That pursuant to arrangements so to do, said purported deed was with the knowledge and consent of defendant recorded in the recorder's office of Lake County, Indiana, on October 25, 1932, in deed record 499, page 157, by said Home Savings and Loan Association of Gary, Indiana, and delivered by it to the defendant. *Page 672
"13. — That defendant did not deliver same to plaintiff nor authorize anyone else so to do, but placed the same in a safety deposit box to which defendant and his wife each had access.
"14. — That several years thereafter defendant's said wife without the knowledge or consent of defendant and against his wishes took said deed out of said box and placed the same in another safety deposit box to which she alone had access, but which later became accessible to plaintiff by arrangements agreeable to defendant's said wife.
"15. — That plaintiff has never had the exclusive possession of said deed.
"16. — That in December, 1937, defendant having satisfied the claims of creditors and having learned of plaintiff's intended marriage demanded from plaintiff, then unmarried, a reconveyance of record of said real estate which plaintiff refused and has ever since refused to do.
"17. — That on May 19, 1938, but never before, plaintiff made demand on defendant for possession of said real estate.
"18. — That defendant and his said wife for over two years have been estranged and that plaintiff and defendant's said wife have considered to cheat this defendant out of any and all interest in and to said real estate by said refusal to reconvey as per said agreement so to do and to claim that said real estate was conveyed to plaintiff as a gift.
"19. — That the rental value of said real estate since May 19th, 1938, has been the sum of $150.00 per month.
"20. — That defendant's said wife, Fannie Bloom, refuses to join the defendant as party-cross-complainant in his cross complaint." *Page 673
From these facts the court concluded that the deed was never delivered and was, therefore, insufficient to pass title, and that the grantor never intended to transfer ownership to the appellant.
It is not questioned that the recording of the deed is primafacie evidence of delivery. Whether or not the deed was delivered is the question to be determined from the facts found. The delivery of the deed is as essential to its validity as the signature of the grantor. Since its recordation is only primafacie evidence of its delivery, evidence of words, acts, or conduct showing that it was not the intention of the grantor to give effect to the instrument may be considered. The authorities everywhere stress the importance of the intention of the grantor. There are many decisions in this state emphasizing that fact and so holding. These decisions extend throughout the history of this court. A few of them are as follows: Townsend v. Millican (1913), 53 Ind. App. 11, 101 N.E. 112; Reed v. Robbins (1915), 58 Ind. App. 659, 108 N.E. 780; Fitzgerald, Trustee v.Goff (1884), 99 Ind. 28; Emmons v. Harding (1904),162 Ind. 154, 164, 70 N.E. 142; Stokes v. Anderson (1889),118 Ind. 533, 544, 545, 21 N.E. 331; Vaughan v. Godman (1884),94 Ind. 191.
From these and many other decisions the rule has been firmly settled that the crucial test in all cases of this nature is the intent of the grantor to deliver the deed under all the facts and circumstances in the case. 16 Am. Jur. 501, 502, Deeds §§ 115, 116. The question of the delivery of a deed is ordinarily one of fact. Some of the authorities say it is a mixed question of law and fact. It is for the court or jury trying the case to determine whether or not there was a delivery of the deed.Firemans Fund Ins. Co. v. Dunn (1899), *Page 674 22 Ind. App. 332, 337, 53 N.E. 251; Klingaman v. Burch (1940),216 Ind. 695, 25 N.E.2d 996.
No question as to the rights of creditors is involved in this appeal either by the pleadings or by the finding of the court. The facts found by the court speak for themselves. The court found that, at the time of the purported conveyance, it was not the intention of the defendant or his wife to transfer said real estate to their daughter as her property. There is no finding and no showing to the effect that the appellee conveyed the property to defeat any creditor. This is not a creditor's action to set aside a fraudulent deed. If it were, the creditor alone could maintain the action.
Findings Nos. 5 and 6 disclose that the appellee and his wife had theretofore executed a mortgage to a building and loan association to secure the payment of $6,000. They were apprehensive of their position if the building and loan association should fail. They believed that in such event they would lose their stock payments, having reduced the indebtedness to the sum of $1,600, and that the appellee could better protect himself and his wife by a transfer of the record title to the daughter and the execution of a mortgage by her to secure the $1,600, thereby securing a release of the $6,000 mortgage. The daughter agreed to all these matters, and knew that the property was not transferred to her as her own; that her father was to retain possession of it and pay the indebtedness, taxes, and insurance; and, when all of these things were done, she was to reconvey it to her father and mother. The court found that the deed was never delivered; that there was never any intention to deliver it; that it came into the possession of the daughter, if she ever received it, by a trick or fraud upon the part of the appellee's wife who had become estranged. In many *Page 675 well reasoned decisions the courts have extended the equity rule so as to prevent fraud from being perpetrated. The appellant never paid any consideration for the property; never exercised any ownership over it; and agreed with her father and mother, according to the findings, that the property should be and remain theirs.
I do not think that the criticism of the decisions of this and the Appellate Court is justified under the facts in the case at bar. It is not necessary to overrule any decision in this state in order to affirm the judgment of the lower court, nor is it expedient or necessary to overrule well reasoned decisions in order to assist the appellant, the daughter, to hold and retain property which is not hers. This action does not fall within the statute discussed in the majority opinion. The title and ownership of the real estate never passed to the appellant, for want of a delivery of the deed. "Delivery of a deed" imports possession or right of possession of the instrument with intent to pass title. It is the final act which consummates the deed without which it is inoperative to pass title. Fitzgerald,Trustee v. Goff, supra. The recording of the deed does not pass title. It only secured the title from being defeated by a subsequent sale to an innocent purchaser. 16 Am. Jur. 500, Deeds § 112. The solution of this question is grounded entirely upon the intention of the grantor. On the subject of intent to deliver the deed, the special findings finally settle that question of fact in favor of appellee. If it were necessary or proper to go back of the findings to the evidence, it would be discovered that each finding is fully sustained. On appeal this court considers only the evidence favorable to appellee.
The majority opinion is in error in assuming that title passed to appellant. It could not pass to her under *Page 676 the findings for the reason that the deed was never executed. The execution by the appellant of the mortgage to the building and loan is not evidence of ownership of title. The facts found deny rather than affirm that idea. The appellant was the medium through whom the form of indebtedness was changed. No one was injured thereby. However, by a reversal of this case the father is injured by being deprived of property which is his, and the daughter is benefited by property which in justice and good conscience she should not have.
I think the trial court reached the correct result, well sustained by many decisions of this and other courts. The judgment should have been affirmed.
NOTE. — Reported in 28 N.E.2d 53.