92 Ind. 145 | Ind. | 1883
In this case John P. Bundy, the plaintiff below, alleged in his complaint that, on January 6th, 1871, the defendant George W. Maride executed a promissory note for the sum of $675, payable to the order of one Jasper Nelson; that such note was endorsed by said Nelson to J. A. Egline, and by him endorsed to Joseph Hamer, and by him endorsed
The cause was put at issue and tried by the court, and ai finding was made for the appellee; and over the joint motion of the appellants Elijah and Celia A. Beck for a new trial, the court rendered judgment on its finding.
Error is assigned by the appellants Elijah Beck and Celia A. Beck, in this court, only upon the decision of the circuit court in overruling their .joint motion for a new trial. In this motion the only causes assigned for such new trial were that the finding of the court was contrary to law, and was not sustained by sufficient evidence. We take from the brief of the appellants’ counsel the following statement of the facts, established by the evidence, which statement of facts we have found, by our examination of the record, to be substantially correct.
On the 12th day of November, 1856, one Spicer Jones was the owner in fee simple of the real estate described in the mortgage in suit, and, on that day, he and his wife sold and conveyed such real estate to Martha V. Johnson and William A. Johnson, both of whom were then minors. On the 5th day of September, 1868, William A. Johnson and one Garrett W. Brown, who claimed to be the guardian of Martha
After the execution and record of the mortgage in suit, to wit, on the 31st day of October, 1871, Mary M. Markle and George W. Markle, her husband, executed a deed of the real estate to the appellant Elijah Beck. William A. Johnson was born December 12th, 1847, and arrived at lawful age on December 11th, 1868. When he signed and delivered the deed of the real estate to James G. McAllister, under which the mortgagor Mary M. Markle -derived her title, to wit, on September 5th, 1868, he was a minor under the age of twenty-one years, lacking a little more than three months of having arrived at his majority. Martha V. Johnson did not sign the deed to McAllister, and Garrett W. Brown, who signed the deed as her guardian, was not in fact her guardian, and had no authority to bind her by such deed.
On the 5th day of May, 1874, Martha V., having previously intermamed with one John F. Harrison, commenced an action in the coui-t below for the partition of the real estate described in the mortgage now in suit, and other lands, making defendants to such suit the appellant Elijah Beck, William A. Johnson, Laban Dobson and George Cunningham, and alleging in her complaint that she was the owner in fee simple of the undivided one-half of such real estate. William A. Johnson appeared and filed a cross complaint, ad
Upon the foregoing facts the court foreclosed the mortgage only as to the undivided one-half of the real estate described therein, holding, as is apparent, that Martha V. Johnson’s title to an undivided one-half of the real estate did not pass by the deed, purporting to have been executed by her pretended guardian to James G. McAllister.
The appellants’ counsel have discussed with much force and ability the question of the disaffirmance of the contracts of
The case at bar, therefore, is one where there is evidence in the record which tends to sustain the finding of the trial court on every material point. In such cases it has been uniformly held that this court will not disturb the finding, nor reverse the judgment, upon what might seem to be the weight of the evidence. Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73; Hayden v. Cretcher, 75 Ind. 108; Cornelius v. Coughlin, 86 Ind. 461.
We find no error in the record.
The judgment is affirmed, with costs.