93 Ind. 480 | Ind. | 1883
Lead Opinion
— The appellant and his brothers and sisters were the owners by inheritance and as tenants in common of a tract of land. In proceedings for partition, had in April, 1867, a decree was rendered assigning to appellant eleven twenty-fifths of the land, adjudging that Alice and George Dodge had no interest in the land, and requiring Henry C. Dodge, the appellant, to execute to their guardian a mortgage for $1,100, and that notes of $550 each should be executed ; in accordance with this decree, appellant undertook to execute a mortgage on the land, but by mistake of the scriveners who drew the instrument, it -was misdescribed; on the 11th day of December, 187-, appellant and his wife executed to Elizabeth Manchester a deed, wherein the consideration was stated to be $3,500, and in which it was written that the grantors “ convey and warrant all their right, title and interest in and to the real estate.” It was agreed that appellant should procure his brothers, who were joint owners with him, to convey all their interest in the land to Mrs. Manchester, and this he did procure to be done. In addition to the consideration stated in the deed, a house and lot of the estimated value of $4,000 was also conveyed by Mrs. Man-
We have extracted from the special finding, which is very
The appellant moved the court to add to its special finding a finding upon several points stated in the motion, but on appeal presses only one of these points. It is said that the court ought to have found whether or not Mrs. Manchester assumed the mortgage executed by the appellant to the guardian of his brother and sister, George and Alice. We think the court did find upon this point, for its finding is that Mrs. Manchester had no knowledge of the existence of that mortgage. If, however, the finding had been silent on that subject it would be regarded as against the appellánt, for the reason that upon him rested the burden of proof. It is now well settled that where the finding is silent upon a material point it is to be ■deemed to be adverse to the party upon whom rests the burden of establishing that point. Dixon v. Duke, 85 Ind. 434; Ayers v. Adams, 82 Ind. 109; Talburt v. Berkshire L. Ins. Co., 80 Ind. 434; Jones v. Baird, 76 Ind. 164; Henderson v. Dickey, 76 Ind. 264; Stropes v. Board, etc., 72 Ind. 42; Ex Parte Walls, 73 Ind. 95.
If the finding is against the evidence, then the remedy is by a motion for a new trial upon the ground that the finding is contrary to the evidence. Spraker v. Armstrong, 79 Ind. 577; Ex Parte Walls, supra; Vannoy v. Duprez, 72 Ind. 26; Gauntt v. State, ex rel., 81 Ind. 137; Ayers v. Adams, supra.
An exception to the conclusions of law7 stated by the court concedes for the purposes of the exception the truth of the finding, but it does not cut off a motion for a new trial. If the finding is against the evidence, then, notwithstanding the fact that exceptions have been alleged against the conclusions of law, the party is entitled to contest the correctness of the finding of facts by a proper motion for a new trial filed in due season. Bertelson v. Bower, 81 Ind. 512; Robinson v. Snyder, 74 Ind. 110.
Under the code of 1852 it was imperatively necessary that the motion for a new trial should be filed at the term at which the decision was made. The question in this case is, when was the decision of the court rendered, at the September term when the special finding was filed, or at the December term when the conclusions of law were stated? This question is settled by the case of Wilson v. Vance, 55 Ind. 394, where it was said: “ The term ‘ decision/ as used in tire above statute, is clearly used in the sense of finding upon the facts where the cause is tried by the court.” In Rosenzweig v. Frazer, 82 Ind. 342, it is shown that the words “ finding” and “ decision,” as used in the statute, are synonymous, that there is a distinction between a judgment and a finding, and it is held that a motion for a new trial, stating for cause that the judgment is not sustained by the evidence, presents no question as to the correctness of the finding. In Christy v. Smith, 80 Ind. 573, the extract we have here made from Wilson v.
We come now to the questions presented by the exceptions to the conclusions of law stated on the special finding. The contention of appellant is that the land mortgaged to the guardian is the primary fund out of which the sum evidenced by the notes executed to the guardian, and of which the appellee made a gift to Mrs. Manchester, should be satisfied. We do not deem it necessary to follow counsel in their argument, for, in our opinion, a plain principle of law determines this case in favor of the appellee, and that principle is this: Where one, with knowledge of his rights and of the facts, makes a statement to another to induce him to act in a given way, and the statement produces the effect designed, and causes the person who acts upon it to part with value, he by whom the statement was made can not be afterwards heard to deny its truth. The case at bar falls far within the rule. The appellant had been the owner of the land; he was in full possession of all the facts; he desired to influence appellee to buy the notes; he made the representation to carry this design into execution; he succeeded, and induced appellee to buy upon the faith that the mortgage was the first lien, and
The fact that the mortgage was of record does not change the rule. If a party makes an express statement that there is no mortgage on the land in which he endeavors to sell an interest, he is bound, notwithstanding the fact that an examination of the record would have disclosed the existence of a prior mortgage. Campbell v. Frankem, 65 Ind. 591.
Judgment affirmed.
Rehearing
On Petition for a Rehearing.
— We deem it only necessary to notice two points made in the argument on the petition for a rehearing, as the others are fully covered by our former opinion.
It may be true, as appellant now contends, that it was error to add to the record at the subsequent term; but we are unable to see how appellant can expect to have a complaint made by him heeded or regarded. The change in the record was procured by him, and he is in no situation to complain. If he had desired to question the course pursued by the court, he should have adopted a very different line of action from that pursued by him; he acquiesced in the ruling of the court without objection or exception, and he has, on this branch of the case, no question in the record.
We are well satisfied that the representation made by the appellant to the appellee that the mortgage bought by the latter, and upon which he secured title, was the first mortgage, estops the appellant from disturbing appellee’s title, or from recovering money from him on account of the mortgage of an antecedent date. The representation made by the appellant was one upon which the appellee had a right to rely, and
The representation estopped the appellant from asserting that there was any mortgage anterior in date to that sold by •him to the appellee. Having once affirmed that the mortgage which he induced the appellee to buy was the oldest, he can not, in the face of that representation, be heard to aver that there was an older mortgage. As against the appellee, he can not gainsay what he said; he can not bring forth a mortgage older in date for any purpose whatsoever.
A representation operates to estop the person making it from denying or evading the legal effect of the fact represented to exist.' An estoppel is by no means confined to the bare existence or non-existence of the fact, but extends to the legal consequences directly and legitimately resulting from the fact. We have not made the estoppel reach beyond the effect of the representation. The legal effect of the estoppel extends to appellee’s entire conduct, the purchase of the mortgage, the foreclosure suit, and the acquisition of title. In all rights acquired by virtue of these things, he is entitled to protection against a claim founded on a mortgage anterior in date. Appellant can not make the antecedent mortgage available against the appellee in any form. Having said there was no such thing, he can not now say there was such a thing. In equity and in law, the appellant has no right to suggest that there was such a mortgage. In no shape or form is he entitled to benefit from it to appellee’s injury.
Petition overruled.