86 Ind. 560 | Ind. | 1882
The complaint of the appellants asks that a judgment and decree, rendered against them in an action on a mortgage executed to appellee to indemnify him against loss upon an undertaking as surety, may be reviewed and set aside upon the ground that the complaint in the former action was insufficient.
The objection first urged against the complaint in the former action is, that it does not show that the plaintiff in that action suffered any loss or paid any money on account of his suretyship. The complaint does not show that the surety has paid the indebtedness for which he was liable, but it does show that judgment has been taken for it against him and his principals, and that the latter have no other property subject to execution than that embraced in mortgage. This instrument does contain an express promise to pay the indebtedness for which the appellee was surety, and as the appellants are shown not to have paid it, there is a breach of the condition and a complete right of action. The judgment settles the amount the appellee is bound to pay, the complaint shows that it can only be made out of the property mortgaged, and there can be no doubt of the right of the mortgagee to a decree of foreclosure. In Gunel v. Cue, 72 Ind. 34, it was held that where a mortgage made to secure a surety from loss contained a provision similar to that written in the one under immediate mention, it bound the mortgagor to pay the debt, and that •a breach of this covenant conferred an immediate right of action. It is well settled that such a covenant is, as Parke, B., said, in Loosemore v. Radford, 9 M. & W. 657, “an
It is said, however, that the covenant expressed in the words “and the mortgagors agree to pay the sum above secured,” refers to a sum named in the mortgage as due the mortgagee. We can not so read the instrument. It is a. familiar rule that all the provisions of a contract are to be. considered for the purpose of ascertaining the intention of' the parties, and that, when'the intention is ascertained, it shall’ be carried into effect. Taking into consideration all the provisions of the instrument before us, it is perfectly clear that the mortgagors covenanted to pay the entire indebtedness described in the mortgage, and not merely a part of it. In verification of our conclusion, we need quote only one of the other provisions of the mortgage, and this is the one which reads thus: “ Now, if the mortgagors pay said sums of money and all interest thereon, and save the mortgagee from any and all. liability thereon, this mortgage to be of no effect, otherwise to be in full force as a security and indemnity as aforesaid.”' This means that the mortgage shall secure all the sums which the mortgagors have agreed to pay, and shall also stand as an indemnity to the mortgagee for all incidental losses, as costs, and the like.
It is also contended that the complaint does not identify the indebtedness secured. We are clear that the mortgage on its face does this, but if we are wrong in this, it is quite certain that the complaint, by a proper statement of facts, does,, and this, it is settled, is sufficient where, as here, the mortgage itself supplies ample means of identification.'
The fact that the notes which were originally given were renewed by others executed in their place, and for the same debt, does not release the mortgage. It has been many times decided that a mortgage stands for the debt, although there-
Judgment affirmed.