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08/26/87 ITT INDUSTRIAL CREDIT COMPANY v. R.T.M.

Filed: August 26, 1987.

ITT INDUSTRIAL CREDIT COMPANY, APPELLANT-PLAINTIFF,
v.
R.T.M. DEVELOPMENT CO., INC. RAY T. MILLER, JR., ANN MILLER, EUGENE E. ZIMMER, JANE ZIMMER, FRED E. DAVIS, HELEN E. DAVIS, EARL E. BOSTIC, MARGARET BOSTIC, PAUL M. GILLMORE, CARL J. REINKE & SONS, INC., AND RITSCHARD BROS., INC., APPELLEE-DEFENDANTS



APPEAL FROM THE ST. JOSEPH CIRCUIT COURT, The Honorable John W. Montgomery, Judge, Cause No. P-1094.

Staton, J., Hoffman, J., and Sullivan, J., Concur.

Author: Staton

STATON, J.

Eugene and Jane Zimmer (the Zimmers) are the owners of real estate in South Bend, Indiana. That real estate was sought by R.T.M. Development Co., Inc. (RTM) for its plans to build a Hilton Hotel. RTM offered to buy the Zimmers' property for $100,000.00, and to that end the Zimmers executed a warranty deed with the words "Not valid until receipt of full payment" written across the top of it.

RTM also sought financing from ITT Industrial Credit Corporation (ITT). Part of ITT's security for the loan was a first mortgage on the Zimmers' property. The RTM-ITT agreement was executed on November 7, 1980, but the closing between RTM and the Zimmers did not take place until November 12, 1980. At some time prior to the Zimmers' closing, the words on the deed "Not valid until receipt of full payment" were scratched out and the Zimmers' initials were written nearby.

In an action by ITT against RTM and to foreclose a real estate mortgage, the trial court ruled that the Zimmers' warranty deed did not convey any interest to RTM because they did not receive full payment. Therefore, ITT had no claim against the Zimmer property.

ITT has appealed that portion of the trial court's judgment dealing with the Zimmers' property and presents the following issues for our review:

1) Whether the judgment was contrary to the evidence;

2) Whether the Zimmers created an equitable lien on the property by writing the words "Not valid until receipt of full payment" on the deed; and

3) Whether the Zimmers were estopped from asserting the invalidity of the deed because they retained benefits in exchange for the deed.

Affirmed.

I.

Evidence

The trial court made specific findings of fact and Conclusions of law. The purpose of special findings is to provide the parties and the reviewing court with the theory upon which the case was decided. Kimbrell v. City of Lafayette (1983), Ind.App., 454 N.E.2d 73, 74. We afford special findings a two-tier standard of review: first, we must determine if the evidence supports the findings; and second, we must determine whether the findings support the judgment. Keystone Square v. Marsh Supermarkets, Inc. (1984), Ind.App., 459 N.E.2d 420, ...


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