83 Ind. 18 | Ind. | 1882
This v/as a suit by the appellee against the appellants, for the collection of a promissory note executed by the appellant Copenrath and one Albert Hickman, since de
The action having been put at issue and tried by a jury, a verdict was returned for the appellee, “that the mortgage ought to be foreclosed against the defendants for the sum of 870.12 dollars, and 108.49 dollars as attorney’s fees.” Over appellants’ motion for a new trial, and their exception saved, the court rendered judgment for the appellee in accordance with the verdict.
The following decisions of the circuit court have been assigned as errors by the appellants:
1. In overruling the demurrer of the appellant Elizabeth Hickman, administratrix, to the second paragraph of appellee’s reply.
2. In overruling the demurrer of said Elizabeth Hickman, administratrix, to the third paragraph of appellee’s reply.
3. In overruling the motion for a new trial; and,
4. In rendering judgment of foreclosure against the appellants.
As preliminary to the consideration of the questions presented for decision by these alleged errors, we deem it necessary that we should give a summarized statement, at least, of the answers of the appellant Elizabeth Hickman, administratrix of the estate of Albert Hickman, deceased, to appellee’s complaint. This answer contained eight paragraphs, of which the first was a general denial of the complaint.
In the second paragraph, the said Elizabeth Hickman admitted that she was the administratrix of the estate of Albert Hickman, deceased, and the widow of said decedent; that the said Albert executed the note and mortgage in suit, and that she
The third paragraph of answer differed from the second, chiefly in this: that it was alleged therein that, at the time of his execution of the note and mortgage, the said Albert was so drunk, intoxicated and under the influence of alcoholic stimulants, that he was wholly incapable of understanding or comprehending the purport or effect of such note or mortgage ; and that he was wholly incapable of understanding or comprehending the ordinary affairs of life, all of which the appellee well knew.
In the fourth paragraph of answer, it was alleged that, at the time the said Albert executed the note and mortgage, he was of unsound mind, and wholly incapable of understanding or comprehending the nature, purport or effect of said note or mortgage, or of transacting the ordinary business of life.
In the fifth paragraph of answer, it was alleged that the note and mortgage in suit were fully paid and satisfied, long prior to the commencement of this action.
It was alleged in the sixth paragraph of answer, that the note and mortgage were executed without any'consideration whatever.
In the seventh partial answer to the complaint, it was alleged that there was no consideration whatever for the attorneys’ fees mentioned therein.
In the eighth paragraph of said answer, it was alleged that, at the time the said Albert Hickman executed the note and mortgage in suit, he was in feeble health, and weak and de
Wherefore the said administratrix of the said Albert, deceased, said that the appellee ought not to recover in this action, and she asked judgment for costs.
The second paragraph of appellee’s reply was addressed to so much of the separate answer of the administratrix of said Albert Hickman, deceased, as related to the incapacity of said Albert to contract, at the time of the execution of the note and mortgage in suit, on account of his intoxication and un
The demurrer of the administratrix to this paragraph, upon the ground that it did not state facts sufficient to constitute a reply, was overruled by the court; and this ruling was excepted to and is assigned here as error. The point is made by the apjiellants’ counsel, in argument, that this paragraph of reply was insufficient on the demurrer thereto, in this: that it did not state the facts which might, or might not, have constituted under the law a ratification or confirmation by said Albert Hickman of his note and mortgage, after he became sober and of sound mind. The paragraph merely stated the pleader’s conclusion from facts which were not, but ought to have been, alleged by the appellee, in order to constitute a good reply to the appellant’s answer. Under the allegations of the answer, in relation to the incapacity of Albert Hickman to contract, as he was not shown to have been under guardianship, his note and mortgage were not void, but were merely voidable, and were subject to disaffirmance or ratification by him, after the removal of his incapacity to contract. Freed v. Brown, 55 Ind. 310; McClain v. Davis, 77 Ind. 419; Wray v. Chandler, 64 Ind. 146; Hardenbrook v. Sherwood, 72 Ind. 403.
In Reinskopf v. Rogge, 37 Ind. 207, which was a suit to foreclose a mortgage, an answer had been filed setting up the mental incapacity of the mortgagor, produced by drunkenness, and, in speaking of a reply to this answer, this court said: To show a ratification of the contract by Rogge, it should have been shown that he became sober and in his right mind, and that, in that condition, he did some act amounting to a ratification.”
In the case at bar, the second paragraph of reply was insufficient, as it seems to us, because it did not state what acts,
The third paragraph of appellee’s reply was addressed to so much of the answer as related to the incapacity of Albert Hickman to contract, at the time of the execution of the note and mortgage in suit, on account of intoxication and unsoundness of mind; and, in said paragraph, the appellee alleged in substance, that the note in suit was given for $600, money borrowed of appellee by said Albert Hickman; that said Copenrath, though first signing the note, was only the surety of said Albert; that the money was obtained for the use and benefit of said Albert, and used and applied for his benefit in payment of a note given by him to said Copenrath for $919.66, in March, 1876, for a balance found due from said Albert to said Copenrath, on a settlement of accounts between them at the time; that at the time of the execution •of the note and mortgage in suit, the appellee had no knowledge whatever of any disability to contract, on the part of ■said Albert, on account of intoxication, any mental derangement or any other cause, but believed him to be perfectly sober and in his right mind, and perfectly capable of entering into a contract; that the transaction between them was bona fide; and that the said Albert Hickman never repaid •the appellee any part of said sum of $600 so loaned to him, and that no one had ever done so for him, nor in his behalf, and had never offered so to do. Wherefore the appellee said that the said note and mortgage should be held valid and in force, as prayed for in his complaint.
The demurrer of the administratrix of said Albert Hickman, deceased, to this paragraph, for the alleged insufficiency of the facts therein stated to constitute a reply, was overruled by the court. She excepted to this ruling and has assigned the same as error, on the record of this cause.
The doctrine of these cases, and of the authorities therein cited, is decisive of the questions presented by the second, alleged error against the appellants. The court committed no error in overruling the demurrer to the third paragraph of reply.
The other errors assigned by the appellants have not been
The judgment is reversed, at appellee’s costs, and the cause remanded with instructions to sustain the demurrer to the second paragraph of reply, and for further proceedings not: inconsistent with this opinion.