Adams v. Vanderbeck

McCabe, J. The appellees sued the appellants to quiet title in and to certain real estate particularly described, situate in Henry county, which appellees claim to own. The issues made by the defendants’ answer of a general denial as to a part of the land, and a disclaimer as to the rest, were tried by a jury resulting in a verdict and judgment in favor of the plaintiffs, the appellees, over defendants’ motion for a new trial and venire de novo. The action of the circuit court in overruling the motion for a new trial, and for a venire de novo is called in question by the assignment of errors. Among the reasons assigned therefor in the motion for a new trial, and now urged as cause for reversal, are that the court erred in the giving to the jury certain instructions, and refusing and modifying an instruction. There is in the transcript what purports to be a bill of exceptions purporting to incorporate the evidence into the same, but it is conceded even by the appellants, that it was not filed in time, and forms no part of the record. [94] There is another bill of exceptions, numbered one, embracing the instructions about which complaint is made. In this bill it is recited that the instructions were applicable to the evidence in accordance with the statute dispensing with the necessity of bringing up the evidence on appeal prosecuted upon the question of the correctness of instructions. Section 662, Burns’ R. S. 1894 (650, R.'S. 1881). This statute makes no change in the practice as to instructions given, but does as to those refused, because as to those given, this court, without the aid of the statute, presumes that instructions were applicable in the absence of the evidence. Drinkout v. Eagle Machine Works, 90 Ind. 423; Rozell v. City of Anderson, 91 Ind. 591; Shugart v. Miles, 125 Ind. 445; Kinney v. Dodge, 101 Ind. 573. Therefore we must presume that the instructions given were applicable to the evidence. So much of the instructions as are complained of read as follows: “But if Reed took a conveyance of the land in controversy before Hume’s deed was made in discharge of or as security for a precedent debt, Reed would not be an innocent purchaser and could acquire no title as against Hume, although his deed would precede the deed to Hume;” and again, “but if Reed acquired his title in payment of a precedent debt, he would not be a purchaser in good faith, and could not hold as against Hume’s title; and if there was a misdescription of the land in the mortgage, and if said misdescription was perpetuated in the deed to Hume from Reeder, and in the deed from Hume to Vanderbecks, the plaintiffs, and if at a subsequent period Hume and Reeder and Reeder’s wife joined in a deed made by them to Vanderbecks for the purpose of correcting said misdescription, said misdescription would not affect the plaintiffs’ title, unless in the meantime an innocent purchaser had acquired a title to said [95] land,pending said misdescription; and a deed made to Eeed or any third party in payment of, or as security for a precedent debt, would not give them a standing as an innocent purchaser. In such case if you believe from the evidence that the deed from Thomas B. Eeeder to Eeed was in payment of or as security for the payment of a precedent debt, you should find for the plaintiff.” So far as these instructions relate to the mortgage, or security, taken to secure a precedent debt, not being sufficient to constitute the taker thereof a bona fide purchaser, they are undoubtedly correct, which appellants’ counsel do not question. Busenbarke v. Ramey, 53 Ind. 499; Gilchrist v. Gough, 63 Ind. 576; Davis v. Newcomb, 72 Ind. 413; Hewitt v. Powers, 84 Ind. 295; Louthain v. Miller, 85 Ind. 161; Wert v. Naylor, 98 Ind. 431. But, as applicable to a conveyance in payment of a precedent debt, they present a different question. We are bound to presume that there was evidence to which each one of the features of the instructions mentioned was applicable. The question presented in Wert v. Naylor, supra, is there thus stated: “Will a conveyance of land by a debtor to a creditor, in payment and satisfaction of a precedent debt, make the creditor a bona fide purchaser of the land, as against prior equities of which he had no notice? * * * In the case at bar the conveyance was not a mere security. It was an absolute conveyance, and it is alleged in the third paragraph of the answer, and in the finding of the court, that such conveyance was taken in full payment and satisfaction of one thousand dollars of the precedent debt, and without notice of the plaintiff’s claim. * * * A man who merely takes security for a debt gives up nothing, but" if he satisfies the debt itself, he does give [96] something, and he giv.es more than he who merely extends the time for payment of the precedent debt, which has often been held sufficient. * * * Pomeroy in his Eq. Jur., vol. 2, p. 208, says, that the weight of authority is in favor of the doctrine that the extinguishment or surrender of a precedent debt, in consideration of the conveyance of land, makes the grantee a bona fide purchaser even against prior equities.” To the same effect are numerous cases cited in the opinion from which we have quoted. Petry v. Ambrosher, 100 Ind. 510; Tarkington v. Pervis, 128 Ind. 182; Orb v. Coapstick, 136 Ind. 313, are not in point and not in conflict with the case above cited. We may presume that there was evidence of a conveyance of land in payment and satisfaction of a preexisting debt owing by the grantor to the grantee, and by agreement of the parties the debt was satisfied and extinguished by the conveyance, and that the grantee had no notice of any prior equity in the land. The instructions tell the jury that such a purchaser would not be a bona fide purchaser. It is true, according to the authorities cited, the grantee in such case must have taken the conveyance without any notice of the prior equity. But the instructions tell the jury that, if the conveyance was made in satisfaction and payment of a precedent debt, the grantee would not be a bona fide purchaser. Under such instruction, the jury would be bound to find that the grantee was not a bona fide purchaser, even 'though the evidence showed that he had no notice of the prior equity. That is not the law. It is true, if this feature of the instructions would be correct under any supposable state of the evidence, then we are by the established law of this State required to presume that such state of evidence existed in the absence of the evidence in the record. But we [97] are also required, as before remarked, to-presume that there was evidence from which the jury might have found that the conveyance mentioned in said instructions was made in payment and satisfaction of a preexisting debt due from the grantor to the grantee, because, if there was no such evidence that feature of the instructions was not applicable to the evidence. Hence, we must hold that feature of the instructions erroneous, and that the circuit court erred in overruling the motion for a new trial. The judgment is reversed, with instructions to grant defendants’ motion for a new trial.