Central Trust & Savings Co. v. Kirkman, 73 Ind. App. 633

Central Trust & Savings Co. v. Kirkman

73 Ind. App. 633 | Ind. Ct. App. | 1920

Nichols, J.

1. Action by appellant against appellees to foreclose a mortgage. Appellees contend that the action was upon a promissory note, and to foreclose the mortgage securing the same, the foreclosure of the mortgage being merely incident to the main action, but for the purposes of this decision, as we view the case, it can make but little difference. Both instruments are involved, and as they are executed by the same parties, at the same time, and pertain to the same subject-matter, they will therefore be read together, and *635construed with reference to each other for the purpose of determining the question presented. 13 C. J. 528.

2. The note and mortgage were executed April 2, 1906, for $600, payable at the rate of $7.20 per month on the principal, and in addition, interest and premium. By these terms, eighty-three monthly payments were required to pay the debt, the last coming due March 2, 1913. Appellee Kirkman made five payments, the last being on December 30, 1906. Nothing was paid thereafter, except $24.10, in redemption from tax sale, which was paid August 1, 1914. The mortgage provides that failure to pay for three months from the time the payments become due shall make the whole debt due at the option of the mortgagee. There is no averment that this option was ever exercised. Appellees Kirkman and Jordan each, by a third paragraph of answer, answered the ten-years’ statute of limitation. To these answers appellant separately demurred, which demurrers were overruled. These rulings were error. As the debt was payable in installments, the statute commenced to run as to each installment when it fell due. 25 Cyc 1106. The installments of the debt falling due within the ten years preceding the commencement of this action were not barred. The demurrers should have been sustained to each of the third paragraphs of answer.

3. At the trial of the cause two affidavits were introduced in evidence, both made by appellee Kirkman— one in 1909 and one in 1912 — in each of which affidavits it is stated that the mortgage indebtedness involved in this action was, at the time such affidavit was made, an actual bona fide mortgage indebtedness against the real estate involved in this action. It is stated in each of such affidavits that it was made for the purpose of having such mortgage indebtedness 'deducted from the assessed valuation of said real estate. *636Appellant contends that these affidavits constituted a sufficient acknowledgment of the debt to take the case out of the operation of the statute of limitations. But a contrary doctrine is held in Indiana. See Niblack, Admr., v. Goodman (1879), 67 Ind. 174, 183. This case seems to be in harmony with the weight of authority. 25 Cyc 1362.

4. Two deeds were put in evidence, the first showing a conveyance from appellee Kirkman to her aunt, Martha Wyant, and the second from such aunt to appellee Jordan. It is apparent from the record that each of these deeds was executed without consideration, and, while they may be good as between the parties, they are without force as against appellant. We understand from the statements made in oral argument that appellee Jordan is not claiming any defense that is not available to appellee Kirkman.

Other errors are presented which we do not deem necessary to consider. The judgment is reversed, with instructions to the trial court to sustain the demurrers to the third paragraphs of answer, and for further proceedings in harmony with this opinion.