Garrett Savings Loan & Trust Co. v. Sanders

Neal, P. J. On November 18, 1923, appellees executed their joint and several note to appellant, in the principal sum of $400, due three years after date, and to secure the note executed a mortgage on lot 7, block 9, Thomas South Addition to the city of Garrett. The note became due and was unpaid. Appellant then commenced this action to recover a personal judgment on the promissory note so executed by appellees and to fore-, close the mortgage. The appellees answered the complaint in three paragraphs: (1) General denial; (2) payment of the note; (3) release and discharge of all liability. The material allegations of the third paragraph may be summarized as follows: That on July 26, 1926, and ever since, the Garrett Home Building Company was a corporation with its principal place of business located in the city of Garrett; that the Garrett Home Building Company was operated and conducted in connection with the business of the Garrett Savings Loan and Trust Company; that both companies were managed and operated by Monte L. Green, who was an officer in each of the above-named corporations; that on July 26,1926, appellees entered into an agreement with Monte' L. Green, who was then acting for and on behalf of both companies, whereby appellees agreed to convey the real estate described in the mortgage to the Garrett Home Building Company in consideration for which the Garrett Home Building Company agreed to assume and pay the note and mortgage so executed by appellees and certain other liens and incumbrances then existing against the real estate, and the appellant agreed that if appellees “would so execute a deed of conveyance for said real estate, the defendants (appellees) would be released and *172 discharged from all further liability on said note and mortgage”; that, pursuant to the agreement, appellees did execute a warranty deed of conveyance for the real estate, conveying the same to the Garrett Home Building Company and delivering the deed to appellant, which deed was accepted pursuant to the agreement; that the deed was prepared by Monte L. Green, as managing official of both the Garrett Home Building Company, and appellant; that the deed contained the following clause: “That grantee assumes and agrees to pay the 1926 taxes due and payable in 1927, and any and all liens, incumbrances, assessments or impositions levied against said real estate including a mortgage in the sum of $400, in favor of the Garrett Savings Loan and Trust Company, and interest on the mortgage from November 15, 1926; that, by reason of the premises, the Garrett Home Building Company is the owner in fee simple of the real estate, and is also the obligor on the note and mortgage, and that, by reason of the premises, the defendants [appellees] are released and discharged from all liability on the said note and mortgage.” A reply in general denial to the third paragraph of answer closed the issues. The court found for appellees and rendered judgment accordingly. Motion for new trial was overruled, exceptions given, and appeal perfected. -The error assigned is that the court erred in overruling appellant’s motion for a new trial, and the specific causes presented are: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding is contrary to law. A resume of the evidence favorable to appellee is as follows: - That the appellees did-execute the note and mortgage in the manner and form as heretofore set forth in this opinion; that the note was due and unpaid; that in July, 1926, appellee J. A. Sanders had a conversation with one Monte L. Green, at the bank — the Garrett Sav *173 ings Loan and Trust Company — that the purport of the conversation was to the effect that appellees did not want to be bothered with the property; that they (appellees) would deed the property to Green provided Green would assume the mortgage and balance due on the pavement and water taps due VanFleet and release (appellees) from the note and mortgage; and that Green advised appellee J. A. Sanders that he would take the matter under advisement; that a few days subsequent to the conversation, appellee J. A. Sanders received through the mail a warranty deed prepared by Green, which deed was to the effect that appellees conveyed to Garrett Home Building Company lot 7, in block 9, Thomas South Addition to the city of Garrett, and that the grantee assumed ánd agreed to pay the 1926 taxes, due and payable in 1927, all liens, incumbrances, assessments or impositions, levied against the real estate, including a mortgage in the sum of $400, in favor of the Garrett Savings Loan and Trust Company, and the interest on the same, from November 15,1926; that appellees signed the deed and acknowledged the same before one Dale Green, an employee of the insurance department conducted by appellant; that the deed, in the latter part of July, 1926, was mailed to Green; that in the month of November, appellees received the deed, accompanied by a letter from Green. The letter informed appellee Sanders that the writer, Green, was inclosing a statement of appellee’s account and returning the deed, and that he would confer with Sanders next week. The Garrett Savings and Trust Company was a bank, and Monte L. Green was the president; he was also one of the officers, secretary, of the Garrett Home Building Company, al-though, not a director of the Garrett Home Building Company; that the directors of the Garrett Home Building Company met'in the directors’ room of appellant, the Garrett Savings Loan and Trust Company; that *174 Monte L. Green was active in the business affairs of each corporation; that prior to July 26, 1926, appellee J. A. Sanders had several business transactions with the Garrett Home Building Company; that appellee had sold at public auction several lots; that the purchasers of the real estate had executed their several contracts evidencing the purchase price; that these contracts were purchased by the Garrett Home Building Company through Monte L. Green, and, in order that the Garrett Home Building Company could perform the conditions of the contracts when the consideration had been discharged by the several purchasers, the real estate had been deeded to the Garrett Home Building Company by appellees; and that lot 7, being the same real estate described in the mortgage and deed heretofore mentioned, was sold at public auction at the time of the sale of the other lots, hut the purchaser was unable to consummate the sale. The evidence on behalf of appellant was of the following tenor: That Monte L. Green at no time agreed for and on behalf of the appellant that it would release the appellees of their personal liability on the notes so executed by them; that the note was never surrendered nor marked paid; that the directors of the Garrett Home Building Company refused to accept the deed unless the appellees would pay a certain sum owing to one of its directors; and that appellees refused to comply with the stipulation, and the deed was returned. Appellees challenge the sufficiency of appellant’s brief to present the error assigned, to wit: The overruling of the motion for a new trial, and the two causes thereunder, as 'above mentioned in this opinion. An examination of appellant’s brief discloses that the motion for a new trial and the two causes are copied therein in full; that the several points and authorities are directed to the specification that the finding of the court was not *175 sustained by sufficient evidence, and therefore was contrary to law. A good-faith effort has been made by appellants to present the error assigned, and we are not desirous, by reason of refined technical objections, to refuse to consider the question presented. Appellees say, in support of the judgment of the trial court: “That it appears from the evidence that the Garrett Home Building Company was a mere subsidiary of the appellant, with its office in the appellant bank, and both being under the direct management of Monte L. Green, who was secretary of the Garrett Home Building Company and president of the bank”; that “the appellant’s mortgage became merged in the superior title which it acquired through the deed of appellees.” The evidence is not susceptible of a construction that the relationship between the two corporations is of such a character that a conveyance of the legal title to the real estate in question to the Garrett Home Building Company is of the same legal effect as a conveyance to appellant. There is no evidence that the directors of the Garrett Savings Loan and Trust Company, or even a majority of them, are the directors of the Garrett Home Building Company; no evidence that the stockholders of each corporation are the same, or that the majority of the stock in each corporation is owned by the same stockholders; no evidence that appellant, by or through an arrangement, whether lawful or otherwise, owns or controls a majority or any of the stock of the Garrett Home Building Company. To say that because Monte L. Green was the president of appellant and secretary of the Garrett Home Building Company, active in the management of each corporation, coupled with the fact that the directors of the Garrett Home Building Company met in the directors’ room of appellant Trust Company, ipso facto constituted these two corporations *176 one legal entity, has no support in any text book or reported case. Appellees, by their several propositions, say: That an agreement was entered into between Green and appellees whereby appellees were to be discharged from any further liability on the note and mortgage if appellees would execute a deed to appellant for the mortgaged property; that, pursuant to the agreement, Green drafted the deed, but, instead of making appellant the grantee as was agreed upon, Green wrote in the name of the Garrett Home Building Company as the grantee; that the deed was executed by appellees, delivered to appellant and accepted by it, and appellant has since been in the possession of the property, and received the rents and profits therefrom. As we view the evidence, no reasonable inferences can be drawn therefrom in conformity with appellee’s view. Appellee J. A. Sanders, on direct examination, said: “I asked Mr. Green about Mrs. Sanders and myself deeding this property over to Mr. Green, and him assuming the balance due on the pavement and the water taps due VanFleet that he put in at the time that they put the pavement through, and Mr. Green said he would take it under advisement and I would hear from him. A few days — three or four days after that — he mailed the deed over.” No objection was made to the above testimony. It will be observed, however, that at no place did Sanders refer to appellant bank. Certainly, it cannot be contended that the evidence of the appellee just quoted would sustain a reasonable inference that the grantee was to be the appellant, in the light of the solemn instrument signed and acknowledged by them wherein the terms and conditions of the conveyance were concisely and clearly' set forth. Phillbrook v. Emswiler (1884), 92 Ind. 590; Straub v. Terre Haute, etc., R. Co. (1893), 135 Ind. 458, 35 N. E. 504; Smith v. *177 McClain (1896), 146 Ind. 77, 45 N. E. 41. Green was acting as the agent for the Garrett Home Building Company and not the appellant bank. In the light of the provisions of the deed, the Garrett Home Building Company became, as between it and the appellees, the principal debtor. The promissory note was not surrendered or paid. The evidence is insufficient to establish the fact as contended for by appellee that the appellant bank agreed to release the appellees from all liability on the note. Judgment reversed, with instructions to sustain appellant’s motion for new trial. Nichols, J., dissents.