Eichbredt v. Angerman

80 Ind. 208 | Ind. | 1881

Best, C.

— The appellee brought this action against the appellants, to reform and foreclose a mortgage, and to recover a personal judgment. The complaint consisted of three paragraphs, all of which were, substantially, the same. The sub.stance of each was, that John Eichbredt and Caroline Eichbredt, on the 1st day of January, 1878, executed to the appellee a mortgage upon the following real estate, in Lake county, Indiana, to wit: “ Fifty acres off the north side of the south half of the northeast quarter of section one, township thirty-three north, of range nine west,” to secure the payment of four notes, of even date, for one hundred dollars each, payable by them to him, one, two, three and four yeaz’s from date, respectively, with interest, and without relief; that, by the mutual mistake of the parties, the land was misdescribed, by ■omitting frozzz the descriptiozi the words “fifty acres,” and inserting in lieu thereof these words: “ Or interest in fee simple;” that John Deitz claizns azz interest in the land, and he is-znade a defezzdazzt, etc. Prayer for a judgmezit for $600, a reformatiozz azzd a foreclosure of the mortgage.

John and Caroline Eichbredt united in a demurz’er to each paragz’aph of the complaint, ozz the ground that neither of them stated facts sufficient to constitute a cause of action. 'This deznurrer was overz’uled, and an exception was reserved hy thezn.

A gzzardian ad litem was appointed for John Deitz, who was :a zninor. Issues were foz’med, submitted to the couz-t, and a finding, made for the appellee. Over a znotiozz for a new trial, personal judgment wasrendez’ed against John Eichbredt, and the mortgage was refoz’med and foreclosed against all the appellants.

From this judgznent they appeal, and insist that the complaint does not state facts sufficient to constitute a cause of actiozi; that the court erz’ed izi overruling the demurrer to each paragraph of the complaint, and in overruling the motion for .a new trial.

The only objection uz’ged to the coznplaint is, that its avermezits are not sufficient to authorize a reformation of the znortgage. This objection is uz’ged by all the appellants, tinder a joint assignment that the coznplaint does not state facts sufficient to constitute a cause of action, and unless the complaint is bad as to all the appellants, the assignment can not be sustained; Such an assignment is like a joint demurrer, which, if not well taken by all, is not well taken by any. Estep v. Burke, 19 Ind. 87; Teter v. Hinders, 19 Ind. 93.

If then the complaint was good as against any of the appellants, it must be regarded as sufficient upon this assignment. The appellants do not claim that the complaint was not sufficient to' entitle the appellee to a personal judgment upon the notes that had matured, and for this purpose it was unquestionably good. A complaint which seeks to enforce a lien and to recover a personal judgment is sufficient if it states facts that entitle the party to a personal judgment,, though the facts stated do not authorize the enforcement of the lien. Bourgette v. Hubinger, 30 Ind. 296; The City of Crawfordsville v. Barr, 65 Ind. 367.

If the facts stated had not entitled the appellee to a personal judgment, the assignment in question would have presented the question discussed. Nolte v. Libbert, 34 Ind. 163; Struble v. Neighbert, 41 Ind. 344; White v. Hyatt, 40 Ind. 385.

In the case last above cited, the same question arose, and it was conceded that the complaint was good as an action upon the matured note. It was, however, held that a misdescription in the mortgage sought to be foreclosed was raised by a motion to strike out the unmatured note and by an objection to the admission of the mortgage in evidence. It may be observed that a like objection was made in this case, but, as the ruling was not embraced in the motion for a new trial,, no question is presented by it. The complaint being sufficient to authorize a personal judgment, the assignment that, it does not state facts, etc., can not be sustained.

For the same reasons the demurrer was property overruled.

This brings us to the motion for a new trial. There is no motion for a new trial by the guardian ad litem for John Deitz, and hence no question arises as to him. The motion is by the other appellants, and was, as we think, properly overruled, as the finding was abundantly sustained by the evidence. The evidence shows thata former husband of Caroline had executed a mortgage upon the land to secure the payment of the purchase-money, and that he died, leaving his wife, Caroline, and two children surviving him; that afterward the mortgage was foreclosed and the property sold; that, during the year of redemption, one of the children died intestate and without issue, and that Caroline married John Eichbredt, her co-appellant; that, about the expiration of the year for redemption, they borrowed of the appellee money enough to redeem the land, and agreed to give him a mortgage upon the same land to secure its payment; that, in pursuance of such agreement, the mortgage in suit was made, and that a mistake was made in describing the land. Under these circumstances, the correction of the description was not only proper, but the foreclosure of the mortgage, as reformed, was eminently jusí and right.

It is also insisted that the appellant Caroline could not mortgage such interest in said land as she held by virtue of her previous marriage, and for such reason the finding was wrong. This question does not arise upon a motion for a new trial. If she had any interest which she could mortgage, it was proper to correct the mortgage so as to describe the land in which she held the interest. It is conceded that she did have such interest, and, therefore, the' correction was proper. The motion for a new trial was properly overruled, and the judgment should be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellants’ costs.