71 Ind. App. 43 | Ind. Ct. App. | 1919
— This is an action by appellee against appellants, who are husband and wife, to recover a judgment on certain promissory notes, executed by each of them, and to foreclose a mortgage executed by appellants on certain real estate held by them as tenants by entireties, given to secure said notes. Appellant Mary J. Aldridge filed her separate answer to appellee’s complaint in four paragraphs. The first is a general denial. The second alleges that she is the wife of her coappellant, and was such at the time of the execution of the mortgage mentioned in appellee’s complaint; that at the time of the execution thereof she and her said husband owned the real estate described therein as tenants by entireties; and that she executed the same, and the notes secured thereby as surety only. The third paragraph is a plea of want of consideration. The fourth paragraph alleges that, at the time of the execution of the notes and mortgages in suit, she was, and still is, the wife of her coappellant; that said instruments were executed in consideration of a debt owing by her coappellant to appellee; that she received no part of the consideration thereof, and executed the same only as' surety for her said coappellant. Appellee filed a
The facts essential to the determination of the questions hereinafter considered are as follows: That on and prior to April 1,1915, appellee was the owner of a grocery store and meat market in Indianapolis; that appellants were husband and wife, and were, living together as such on said date, and at all times hereinafter mentioned, of which fact appellee had knowledge; that on and prior to said date each of appellants were earning wages and contributing the same to their family expenses; that on said date negotiations were begun between appellee and-appellant Bert E. Aldridge for the sale of said, store and market, in which appellee agreed to sell the same and accept as security for the deferred payments therefor a mortgage on certain lots in Muncie, Indiana, which
On the facts specially found the court stated conclusions of law, which are in effect as follows: (1) The law of the case is with appellee. (2) Appellant Mary J. Aldridge executed the promissory notes and mortgage in suit as principal, and not as surety. (3) Appellee is- entitled to recover of appellants the sum of $959.15, without relief from valuation or appraisement laws, together with the costs of this action. (4) Appellee is entitled to foreclose the mortgage in suit,
Appellants jointly, and separately and severally, excepted to each of said conclusions of law. They afterwards filed a joint motion for a new trial, and also a separate and several motion for the same purpose. These motions are in substance the same, and were each overruled. Appellants then filed their joint and several motion for a vénire de novo, which was overruled. They now prosecute this appeal, and have assigned errors which require a consideration of the questions hereinafter determined.
Appellants predicate error on the action of the court in overruling their motion for a new trial. Among the reasons assigned therefor are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. This requires us to consider whether the special finding of facts is sustained by sufficient evidence, and whether it is contrary to law. Wolverton v. Wolverton (1904), 163 Ind. 26, 71 N. E. 123. In support of this contention appellants urge with much vigor, among other things, that the evidence shows that the sale of the store and market was made to appellant Bert E. Aldridge and fully consummated by delivery, prior to the time at
Appellants have failed to point out any reversible error in the record, and the judgment is therefore affirmed.