72 Ind. 5 | Ind. | 1880
— The complaint of appellees sought judgment ' upon a promissory note executed by the appellants, and a decree foreclosing a mortgage by which the note was secured. A demurrer was sustained to the third 'paragraph of the answer, and appellants insist that this ruling was erroneous, not because the answer was good, but because the complaint was bad. Not a word is offered in defence of the answer, but the argument is, that as the complaint was bad the court ought to have carried the demurrer back and applied it to the complaint.
It is insisted that the complaint is bad, because it does not show that the land covered by the mortgage was situated in Delaware county. There is no force in this argument, for granting that the land was not shown to have been in the county of Delaware, the complaint, so far forth as it counted upon the promissory note, was unquestionably good. A demurrer addressed to an entire pleading, which states a cause of action, cannot be well taken, although some part of the pleading assailed may be bad. But the counsel is in error in assuming that the land is not shown to>be in Delaware county.. It is not shown, it is true, in the body of the complaint, but the copy of the mortgage, made an exhibit to the complaint, expressly recites that the real estate is situated in Delaware county, Indiana. The recitals of an instrument properly set forth as an exhibit not only aid the statements made in the body of the pleading, but, in case of an inconsistency between the allegations contained in the body of the pleading and the recitals of the exhibit, the latter will control. It is to be observed, however, that this is so only where the instrument is a proper exhibit; it is. never so where an instrument is not the foundation of the pleading, although it may be an important item of evidence-.
The appellants have cited some cases which seem to sustain the position that a complaint upon a note and mortgage is bad unless the mortgage contains a sufficient description of the property conveyed. This is, as it ought to be, the rule where the complaint is based upon a mortgage and seeks simply a decree of foreclosure. In Whittelsey v. Beall, 5 Blackf. 143, the question arose upon a bill in chancery under the old practice, and that case can. not be regarded as
That case can not be regarded as in point upon the question here involved, because here there is a complete and distinct right of action upon the note, and one altogether independent of aid from the mortgage. In White v. Hyatt, 40 Ind. 385, the question here presented is touched, but not decided, and the fair inference is that the inclination of the court then was against the appellants’ theory. In Struble v. Neighbert, 41 Ind. 344, the question was not made as it is here presented; in that case there was no very full consideration, for there was no brief at all from the appellee, and the question here involved can not be deemed to have been decided. It must, indeed, be OAvned that the language used in Struble v. Neighbert will admit of the construction given the case by the appellants, but still it can not be justly said that there was any authoritative judgment upon the question Avith which Ave now have to deal. The case of Halstead v. The Board, etc., 56 Ind. 363, was a complaint to foreclose a mortgage and to recover judgment upon the note secured by the mortgage, and the court does there discuss the question we are now considering, but does not..decide it. We thmk it may, therefore, be affirmed that the precise question iioav under discussion has never been directly decided
The note is, in reality, the substantive cause of action, and it would involve a necessary self-contradiction to affirm that a complaint which properly declares on a note does not state a cause of action, because the incident, to which the note stands as principal, does not contain a sufficient description of the real estate which it was intended to convey by way of security. It must be held, that where a complaint properly counts upon a promissory note it is good, although the mortgage set forth in the same complaint is void because of the insufficiency of the description. We do not, of course, mean to hold that such a complaint would, if proper objection were made, warrant a decree of foreclosure ; what we do hold is that such a complaint can not be overthrown by a demurrer. .It is one thing to state a cause of action justifying a recovery upon a note, and quite another to state facts entitling a complainant to a decree of foreclosure. The demurrer admits the facts stated (if properly pleaded), and, therefore, confesses a full and complete cause of action upon
If the complaint is good as a complaint on a note, but bad in so far as it seeks a decree of foreclosure, a defendant can reach the defect in the mortgage by a motion to strike out, by objection to the introduction of the mortgage in evidence, by objection to the part of the judgment decreeing a foreclosure, or by motion to modify by striking out the portion of the judgment directing a foreclosure and sale of the mortgaged property. In cases where the action was founded on a mechanic’s lien, it has been several times held that if a good cause of action is stated, but a defective notice of lien shown, demurrer will not lie, and that the appropriate remedy is by a motion to strike out so much of the complaint as seeks to enforce the lien.. The cases to which reference is made are precisely the same in principle as the present; there is not a shade’s difference between the two classes of cases. In the clagg represented by the mechanic’s lien cases, if the only right to judgment is on the lien, and is a right to a judgment solely against the property, then, of course, a demurrer is the appropriate method of attack; but where there is a distinct right of recovery, existing apart from the lien, it is not. So the cases hold, and they are clearly right and apply to cases like the one now under examination, for, in principle, there is no difference whatever between the-two classes.
' It is argued that the court erred in rendering a decree foreclosing the mortgage, because -of the insufficiency of the
The appellants insist that the court below erred in admitting certain evidence, but they have not properly presented the question which they argue. The only cause assigned for
admitting illegal and improper evidence on the trial of said cause, over the objection of the defendant.” It has been again and again decided that such an assignment of a cause for a new trial is insufficient.
•Judgment affirmed, at costs of appellants.