Pothast v. Kind

PRESTON, J.

We have for review, upon separate judgments, two causes heard together. Separate clerk’s and one reporter’s transcripts have been filed. The judgments were for Henry Pothast in both eases, he being a plaintiff in the one and a substituted defendant for Citizens National Trust and Savings Bank in the other; appellants are defendants in the one case and plaintiffs in the other. The judgments are consistent with each other and adjudicate the title to each of two lots, Nos. 35 and 36, both owned by said

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respondent prior to his negotiations with appellants, as a result of which his title to both was clouded by a written escrow agreement and its amendments. This agreement the trial court has, by its judgments, declared inoperative. The applicable principles of law are simple and require an affirmance of both judgments. The facts giving rise to the application of these principles, however, are quite complicated. But it suffices to say that on April 26, 1929, respondent and appellant Cly entered into a written escrow agreement, making defendant bank the escrow agent. The essence of the agreement was that respondent was to deliver to the escrow party deeds to Cly or his assigns for the lots, in return for two notes which were second liens on other property, together with another second lien on one of the lots to be conveyed, plus a cash payment of $2,000. This cash payment is to be noted as the important item in the consideration of these appeals.

The deeds were duly made and deposited by respondent and the deed to lot 35 was actually delivered to the grantee and recorded and later a mortgage lien was placed thereon by said grantee. This transaction was the subject of the judgment in the case of

Pothast, Plaintiff,

v.

Kind et al., Defendants.

The relief there given was a cancellation of the deed and mortgage, together with a decree quieting respondent’s title to said lot on payment of the sum of $500. The second judgment decreed that respondent was entitled to a return from the escrow of the deed to lot 36.

The escrow agreement was indivisible and the delivery of the deed that was recorded was not a separate transaction as the consideration from the purchasers moved to respondent in bulk for both lots. Said agreement was dated April 26, 1929, and allowed ninety days for deposit of the above-mentioned cash payment of $2,000. The immediate controversy between the parties, however, is disclosed by the following additional facts: On June 24, 1929, appellants and certain third parties entered into a supplementary escrow with the same escrow agent, but to which respondent was not a party, pursuant to which $2,500 was paid to said escrow agent to be used under certain restrictions. From this sum appellants intended to have paid the $2,000 called for by said first-mentioned escrow agreement.