This is an appeal from a decree of foreclosure of a mortgage on real estate, and from the personal judgment rendered against the makers of the mortgage notes. The principal question to be decided is whether the mortgage contains a sufficient description of the premises intended to be described.
The mortgage is in the short form prescribed by the statute for mortgaging land in this State/ We give the tenor of so much of the instrument as is relevant to the question, viz.: “ This indenture witnesseth, Ira N. Holmes and Amanda D. Holmes, of Boone county, and State of Indiana, mortgage and warrant to John M. Boyd, cashier of the First National Bank of Thorntown, Boone county, Indiana, to wit: The east half of the northwest quarter of section thirty-five, township twenty north, of range two west,” etc.
The appellants claim that the description does not show in what county and State the land intended to have been mortgaged is situated, and hence that the mortgage was not entitled to registration. It may be observed here, that, if it be conceded that the land is in Indiana, the description given shows it to be in Boone county. The township and range mentioned are found there but not in any other county of the State.
The counsel for the appellee advanced three propositions, on
Against these propositions, counsel for the appellants have cited Weed v. Edmonds, 4 Ind. 468; Cochran v. Utt, 42 Ind. 267; Baldwin v. Kerlin, 46 Ind. 426; Murphy v. Hendricks, 57 Ind, 593; First Nat. Bank v. Gough, 61 Ind. 147; Lee v. Hills, 66 Ind. 474; Glass v. Hulbert, 102 Mass. 24; Holmes v. Evans, 48 Miss. 247; Selden v. Coffee, 55 Miss. 41; People
It would seem difficult to reconcile the third proposition with the fact that the court takes judicial knowledge of the public surveys, and of the existence and location of the several base lines from which the surveys are made. Reading a description by section, township and range, in the light of this judicial knowledge, the ambiguity would seem to be a patent one, and, therefore, not explainable by evidence outside of the writing.
But our concurrence in the second proposition makes it unnecessary in this case to express any opinion concerning the first or third.
This court has several times held, in reference to promissory notes purporting to have been executed in this State, and in terms made payable at a bank named, and nothing to the contrary appearing, that it will be presumed that the bank so named is a bank in this State, and the notes therefore governed by the law merchant. The Indianapolis, etc., Co. v. Caven, 53 Ind. 258 ; Walker v. Woollen, 54 Ind. 164; Roach v. Hill, 54 Ind. 245. The effect of this presumption upon the rights and remedies of the parties to the paper is well understood, and the consequences are not less important than those which pertain to the application of the statute of frauds to contracts concerning real estate, the important bearing of which counsel for the appellants have urged upon our attention. We can think of no sound reason why a similar presumption should not apply to a deed or mortgage, made in the form prescribed by the law of this State, which presumably is not applicable to the conveyance of lands situated elsewhere, and which shows within itself that it was executed in the State, between parties resident in the State, and contains nothing to indicate that land outside of the State was intended. Such a presumption, we have no doubt, will be found to accord with the true intention of the parties in a very large majority of instances in
The case of Lee v. Hills, 66 Ind. 474, is cited to the point that a correction of such a mistake in a deed or mortgage can not be had. The case, however, is not in point. It has reference to the sale of personal property, and the effort was made in the case, not to obtain a modified description of the goods named in the memorandum, but to procure the insertion of the word sold, the effect of which would have been to convert the memorandum into a contract of sale, while, without that word, it contained no evidence whatever of such contract.
That a correction may be had of a deed or mortgage of real estate, in reference to the description of the premises, is too well settled to admit of controversy. White v. Wilson, 6 Blackf. 448; Hileman v. Wright, 9 Ind. 126; Andrews v. Andrews, 12 Ind. 348; Sample v. Rowe, 24 Ind. 208; The German, etc., Ins. Co. v. Grim, 32 Ind. 249; Dice v. Morris, 32 Ind. 283; Barnes v. Bartlett, 47 Ind. 98; Busenbarke v. Ramey, 53 Ind. 499; McKay v. Wakefield, 63 Ind. 27; Wilson v. Stewart, 63 Ind. 294; Easter v. Severin, 64 Ind. 375; Figart v. Halderman, 75 Ind. 564.
There is nothing in the claim that the plaintiff had not capacity to sue, or that there is a defect of parties, because the notes secured by the mortgage were made payable to one Patton as cashier. It was shown that Boyd, to whom, as cashier, the mortgage was made, had succeeded Patton in that office. It is the case of a trustee of an express trust, who may sue in his own name, without joining the cestui que trust. Patton, having ceased to be the trustee, had no interest in or relation to the paper, which made him a necessary party. Paper made payable, or indorsed, to the cashier of a bank, is, in legal effect, payable to the bank itself, and in this case the suit
There was sufficient evidence in the case to show, prima fade, the execution of the mortgage, under the plea of non estfaotvm; and, this being so, it was for the jury to decide upon the weight ■of the conflicting evidence offered on that subject.
All the other questions in the record are made immaterial by our ^conclusion, that the mortgage contains a sufficient description of the land, and needed no correction, from which it follows that the record of it was notice to the world.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.