Bowers v. Bound

14 Ind. 218 | Ind. | 1860

Perkins, J.

On the 5th of February, 1839, Silas Bowers executed his note to Thomas Bowid for 500 dollars, payable on the first of June following, with 10 per cent, interest, value received. He also executed a mortgage on certain real estate, to secure the payment of the note.

Subsequently, Boimd assigned the note and mortgage to one Thomas N. White.

In 1845, Bowid died.

In 1846, Bowers confessed judgment on the note and mortgage, at the suit of White, assignee.

In 1851, White acknowledged satisfaction of the judgment.

The heirs of Bound now sue to set aside that entry of acknowledgment of satisfaction, on the ground that White was the assignee of the note and mortgage simply as an agent for their collection, the beneficial interest being in them as the heirs of their father, the payee; and that the satisfaction was acknowledged by White without receiving any part of the consideration, and fraudulently.

S. B. Gookins, for the appellants. J. P. Usher, for the appellees.

The Court set aside the entry of satisfaction. This was resisted by the defendants on the ground that the note and mortgage on which the judgment was rendered were without consideration, &c.

It strikes us that such a defense was not responsive to the case made by the complaint. That sought simply to set aside an entry of satisfaction by White; and as that entry was wrongly made, it was properly set aside. But that act of the Court did not affect the validity of the judgment as against Bowers, nor deprive his heirs of the' right, if right they had, to proceed against Bound, or his administrators, or heirs, as might be proper in the circumstances which might exist, to set aside that judgment for any sufficient legal cause which could be made the ground of such a proceeding; orto compel an entry of satisfaction of it, by the proper parties.

This being the case, the judgment below must be affirmed.

Per Curiam.

judgment is affirmed with costs.