148 Ind. 599 | Ind. | 1897
The appellant, James D. Parvin, was appointed receiver of the appellee mining company, and by order of court sold the property of said company for |4,250.00. The matters here in controversy have relation to certain liens upon said fund claimed by the.appellant Madison J. Bray, as administrator, and the appellee, Charles E. Pittman.
The conclusions of law by the court were: First, That Charles E. Pittman ought to recover of the mining company the sum of $500.00 with interest from January 9,1892, and his costs. And that said sum is secured by the mortgage named in the findings, and is a lien upon the property therein described, and that the lien of said mortgage ought to be preserved and transferred to the proceeds arising from the sale thereof heretofore made by the receiver herein; and, second, that the causes of action in favor of William S. Pollard and Madison J. Bray, administrator of the estate of Cicero Buchanan, are barred by the statute of limitations, and they should take nothing thereby.
A part of the first conclusion of law seems to be inconsistent with the findings. The court found that the appellee Pittman paid his $500.00 on the bank indebtedness January 9, 1892, and that the mining company, the principal in that indebtedness, paid him his interest on the sum so paid by him, until November 9,1895; and yet the conclusion of law is that Pittman ought to recover of the company $500.00, with interest from January, 9, 1892, thus allowing him double interest for a period of nearly four years. This was perhaps an inadvertence.
The remaining conclusions of law, that the rights of Pollard and Bray to recover are barred by the six years’ statute of limitations, do not seem to be in harmony with that part of the first conclusion which holds that the sum due Pittman is secured by the mortgage, and is therefore a lien upon the property sold by the receiver, which lien should be preserved and transferred to the proceeds derived from said sale. It is not clear why the security money paid by one mortgagee should be protected by the mortgage, while the money paid by other mortgagees should go unprotected.
It was to reimburse the sureties in case they were compelled to make such payment that the mortgage security was given them. This security they had a right to rely upon, and we do not think the six years’ statute of limitations was any bar to their right to recover. The three solvent sureties who had undertaken the payment of the debt to the bank, stood on an equality. They so recognized one another, and were so recognized by their principal, the mining company,
The claim that the payments so made by the sureties were voluntary, and were made by them to their principal, the mining company, and not to the bank, is quite untenable, as shown by the facts found and by the evidence. The money was paid, not for the use of the mining company, but to be applied upon the bank debt, as was at once done in each case. At the same time renewal notes, signed by all the parties, were given, as were also notes from the mortgagor to each party paying, for the amount then paid by him. All the steps taken in each case were but parts of one transaction. It is idle, then, to say that the money so paid was a loan to the mining company.
But it is said, that the mortgage given being but an indemnifying mortgage, and containing in itself no promise to pay the debt to the bank, or to repay the sums which the sureties should be compelled to pay on such indebtedness, it follows that the payments made must be regarded as, in effect, payments on account, and hence, that, for this reason alone, the six years’ statute of limitations must apply, and the case of Lilly v. Dunn, 96 Ind. 220, and other like authorities are cited in support of this contention.
Counsel in making this argument seem to overlook the fact, as shown by the -findings, that, at the time each payment was made by the sureties, the debtor company gave to each surety its note in evidence of the amount so paid by him. The sums so paid are therefore not payments on account, but payments evidenced by the promissory notes of the mortgagor; which notes, moreover, continued to be acknowledged
Besides, as we have recently said, in Simmons Hardware Co. v. Thomas, 147 Ind. 313, where, as in this case, the mortgage was given to indemnify sureties, and where numerous authorities are cited to the proposition. “A mortgage, strictly speaking, does not secure the note or other evidence of debt, but the debt itself; and no mater what changes may be made in the form of the evidence of indebtedness, the mortgage still remains good as security for the debt itself.”
The facts found by the court, amply supported, as we think they are by the evidence, show that the appellee, Charles E. Pittman, should recover the sum of $500.00,- with interest from November 9, 1895, and his costs and attorney’s fees, and no more; and that the appellant Madison J. Bray, administrator, should recover the sum of $500.00, with interest from February 23, 1895, and his costs and attorney’s fees. The amounts so due are secured by the mortgage referred to, and are liens upon the property sold by the re
The judgment is reversed, with instructions to the court to restate its conclusions of law as indicated in this opinion, and to enter judgment accordingly.