McCrory et al. v. Little, Guardian.

owner of the said real estate; that on the 7th day of October, 1886, and while said John S. Clark continued to hold and own said note and mortgage, the defendants, Perry and Fannie McCrory, and said Clark met at the office of a notary public, in the city of Rushville, at which time said Perry and Fannie McCrory conveyed said real estate, by deed, with covenants of general warranty, to said Clark, and that said Clark thereupon, immediately, and as a part of the same transaction, reconveyed said real estate to the defendant, Fannie McCrory; that the consideration expressed in said deed of conveyance from said Perry and Fannie McCrory to said Clark, and for which the same purports to have been executed, is one hundred dollars, and that expressed in and for which said deed from said Clark to said Fannie McCrory was executed is one dollar, but that, in fact, no money or other consideration was paid or given for, or on account of, the execution of either of said deeds; that prior to, and on, said 7th day of October 1886, said Perry McCrory was apprehensive of a suit for damages being instituted against him for an assault or an assault and battery, claimed to have been committed by him on one John S. Holmes, and that the sole and only purpose and intention of said deed of conveyance, and of said parties. thereto, was to transfer the title to said real estate from said Perry to said Fannie McCrory in order to protect the same from any judgment for damages that might thereafter be recovered against said Perry McCrory in said apprehended suit; that the deceased wife of said John S. Clark was a sister of said Perry McCrory, and that said Clark met said Perry and Fannie McCrory on said 7th day of October, 1886, at the time of the execution of said deed, and became a party to the same, as above stated, solely at the request and for the accommodation of said Perry McCrory, and that it was not in

McCrory et al. v. Little, Guardian.

tended by him or by any of said parties that said deeds, or either of them, should merge or extinguish the lien of said mortgage or vest in said Clark any beneficial interest in, or title to, said real estate, or that the same should have any other effect than to enable said Perry McCrory, through him, to vest the title to said real estate in said Fannie McCrory, and that said Fannie McCrory had full knowledge of said mortgage and of all of said facts at the time, and had no other or different intention; that said deed was never delivered to said John S. Clark, but, together with the deed so executed by him, and a mortgage of his personal property, executed by said Perry to his sister, Mary McCrory, for a like purpose was taken and filed for record by said Perry McCrory in the recorder's office of said Rush county, Indiana, on the 7th day of October, 1886; that at the time of the execution of said note and mortgage, said Perry and Fannie McCrory resided on said real estate, and have since continued to reside on and occupy the same as a home, the said Fannie claiming to own said real estate since the execution of said deed. I further find that, since the commencement of this action, namely, on the day of -, 1891, said John S. Clark was, by the circuit court of Fayette county, Indiana, duly and legally adjudged a person of unsound mind, and that the plaintiff, Joseph I. Little, was, by said court appointed, and now is, the duly and legally qualified and acting guardian of said Clark.

"From the facts so found, I conclude: First. That the plaintiff is entitled to recover of and from the defendant, Perry McCrory, the sum of thirty hundred and ninety-four dollars and thirty-seven cents, including the sum of one hundred and fifty-six dollars and eightyseven cents for the plaintiff's attorney's fees herein, collectible without relief from valuation or appraisement

McCrory et al. v. Little, Guardian.

laws, and with interest at the rate of six per cent. per annum, and the costs of this proceeding.

"Second. That the lien of the mortgage described in the complaint was not merged or extinguished, but is a valid and subsisting lien, and that the plaintiff is not estopped from asserting the same, but is entitled, as against both of the defendants, Perry McCrory and Fannie McCrory, to the foreclosure of the same, and the sale of the real estate therein described, namely, the west half of the southeast quarter of section thirty-two, in township fourteen north, range eleven east, in Rush county, Indiana, or so much thereof as shall be necessary for that purpose, as other lands are sold on execution, to pay and satisfy said judgment, together with the interest and costs accrued and to accrue thereon.

"WM. H. MARTIN, Judge pro tem." The appellants excepted to the conclusions of law, and afterward moved the court to make the special findings more specific. The special findings, conclusions of law, and the exceptions thereto, are incorporated in the bill of exceptions. This was unnecessary, as they become part of the record without a bill of exceptions. State, ex rel., v. St. Paul, etc., Turnpike Co., 92 Ind. 42 (47).

The motion to make the findings more specific was not made a part of the record by order of the court, and, as it is not set forth in the bill of exceptions, it constitutes no part of the record, and consequently no question is presented on the overruling of the motion.

The appellants moved for a new trial for two reasons, as follows: 1st. Because the findings of facts by the court are not sustained by the evidence. 2d. Because the court erred in overruling the motion of defendants to make the special finding of facts more specific.

This motion was overruled and the appellants ex

McCrory et al. v. Little, Guardian.

cepted. From what we have heretofore stated, no question is presented by the second reason assigned for a new trial.

Counsel concede it to be the ordinary rule of law that he who makes a warranty deed is bound to defend the title, and they also recognize the well established rule that a lesser title is merged in or swallowed up by the greater, when united in the same person and held in the same capacity. But these rules are subject to exceptions. This court has declared, by repeated decisions, that a mortgage or minor title would not be merged, if, for the purpose of doing justice, it should be preserved. In such cases, equity keeps it alive to prevent injustice. Hanlon v. Doherty, 109 Ind. 37; McClain v. Sullivan, 85 Ind. 174; 1 Jones on Mort., section 873.

* *

In Cox v. Arnsmann, 76 Ind. 210, the facts were that Arnsmann and wife conveyed certain lands to their son John, who, in an hour thereafter, reconveyed the same to his mother. The consideration expressed in both deeds was $500. Certain judgment creditors of the son undertook to sell the land to satisfy executions on their judgments. John had never taken possession of the land, and the court said that "Property so held in trust can not be sold for the debts of the trustee, although it may be sold for the debts of the cestui que trust," and referring to a section of the statute of frauds, it is said: "If, by virtue of this section, John Arnsmann were permitted to hold the property as his own, his father and mother would lose their property by fraud. To prevent that result, equity raises a constructive trust in John Arnsmann for the benefit of his mother, pursuant to the agreement by which he obtained the deed for the property, and permits that trust to be proved by parol. In Johnson v. Plume, 77 Ind. 166, one Gallately owned

McCrory et al. v. Little, Guardian.

certain land, which he conveyed to James C. Plume, who was to borrow certain moneys out of the State sinking fund, securing the payment of the same by mortgage on said land, and then to reconvey the real estate to the grantor, which he did, but the wife of said Plume did not join in the execution of such reconveyance. After the death of Plume, said wife, as his widow, claimed onethird of the land. Under the statute, she was entitled to dower in all lands owned by her husband during marriage, in the conveyance of which she had not joined. It was held that the widow took no interest, because her husband never had a beneficial interest in the land, he having held simply as a trustee and by an instantaneous seizin. The court said: "The seizin is instantaneous, if the title is acquired merely for the purpose of its transmission and without intent to confer a beneficial interest."

"The

In 1 Perry on Trusts, section 226, it is said: statute of frauds is no obstacle in the way of proof of an actual or constructive fraud in the sale of property. Parol evidence is admissible to establish a trust, even against a deed absolute on its face, if it would be a fraud to set up the form of the deed as conclusive."

To the same effect are McDonald v. McDonald, 24 Ind. 68; Teague v. Fowler, 56 Ind. 569; Jackson v. Myers, 120 Ind. 504.

In 1 Rice on Evidence, 289, the author says: "A union of the legal and equitable estates in one and the same person, operates as an extinguishment of an incumbrance in the absence of a controlling intention, as that intention existed at the time the two interests came together." "If there is no expression of the intention at the time, then all the circumstances will be considered in order to discover what is for the best interests of the party. He will be presumed to have intended that