Clarke v. Featherston

| Ind. | Nov 15, 1869

Ray, J.

This was a suit instituted by the appellee, to compel the re-execution of a mortgage, the original having been lost.

The complaint was in two paragraphs. The questions presented in this court are all raised upon the second, the first having been withdrawn.

It is charged in the second paragraph, that on the 2d day of March, 1868, the appellants executed and delivered to the appellee their note for fourteen hundred dollars payable at five years, with interest, and a mortgage upon the real estate mentioned in the first paragraph, in consideration of fourteen hundred dollars loaned by the appellee to the appellant John Clarke; but before said note and mortgage were stamped, or said mortgage was recorded, the appellee, by accident, lost the same, and thereupon the appellee prepared and tendered to the said J ohn another note and mortgage, to be executed, with the necessary stamps, and demanded their execution. A copy of the note and mortgage prepared, and the execution of which was demanded, are set out.

By these copies, the money is payable without relief from valuation or appraisement laws, and with the addition of attorney’s fees if the collection should be enforced.

A separate demurrer was filed by Sarah Clarke, and a joint demurrer by each of the appellants, to this second paragraph, which demurrers were overruled by the court.

The paragraph admits the loss of the note and mortgage to have occurred while they were in the possession of the appellee. There can be no question, therefore, that a demand for the execution of a note and mortgage similar in form and substance to the missing ones was a prerequisite to the commencement of this action, and that a direct’averment of such demand should have been made in the complaint. There is no such averment, nor can any allegation be found that the original note and mortgage were payable without relief from valuation or appraisement laws, and that attorney’s fees upon collection were also to be paid by the appellants.

S. B. Hornbrook and 8. K. Leavitt, for appellants. A. Iglehart, for appellee.

Eor is it possible, by any liberality of practice, to make the description of the premises mortgaged as set out in the first paragraph of the complaint, and as to whichparagraph the action has been- dismissed, a part of the second paragraph by reference.

While avoiding mere technicality, a reasonable degree of certainty must be insisted upon in pleading. Day v. Vallette, 25 Ind. 42" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/day-v-vallette-7036923?utm_source=webapp" opinion_id="7036923">25 Ind. 42.

We think the demurrers should' Iiave been sustained to the second paragraph.

We have not considered the question as to- the proper relief to be administered by a court, upon a sufficient complaint, because reluctant to decide so important a matter without fuller discussion than counsel have favored us with. It may be, that a simple'finding of'the facts and declaring the lien would be the extent to which equity could grant relief.

But this court is one' of review,, and the action of the court below, upon a sufficient complaint, can alone requix*e us to decide this question-

judgment reversed, and cause remanded, with directions to sustain the demurrers- to the second paragraph of the complaint. Costs here-