39 Ind. App. 350 | Ind. Ct. App. | 1906
Suit by appellee Whalen, to enforce a vendor’s lien on real estate. The defendants were Pinkney Sellers, Delphia A. Eisman, State Building & Loan Association of Indianapolis, William Martin, Catharine Krantz, Robert Kelley, Eirst National Bank of Jeffersonville, Citizens National Bank of Jeffersonville and Simeon S. Johnson as. administrator of the estate .of Louis Bottorff, deceased. The complaint is in one paragraph. The following is a fair summary of the pleadings: On January. 10, 1899, Pinkney Sellers, Delphia A. Eisman and John A. Eisma'n executed their joint promissory note to Margaret J. Whalen for $250, due twelve months after date, with seven per cent interest, without relief and with attorney’s fees. On March 4, 1899, Sellers and his wife executed to John A. Eisman a deed for the real estate involved in this suit. The consideration of said deed was $1 and the assumption by Eisman of certain liabilities set forth in the deed. The deed recites that “it is covenanted and agreed, by and between the grantors and grantee, that said grantee, John A. Eisman, as a part consideration of said conveyance, hereby assumes the payment of the following indebtedness owing
The suit was tried zzpon the complaint and denial thereto, the cross-complaints of Kelley and Johnson, and the answer of appellant Eisman in denial thereof. The cause was tried without a jury and a special finding of facts made by the court, conclusions of law stated thereon, and decree rendered in favor of appellees Whalen, Kelley and Johnson. Appellant Eisman excepted to the conclusions of law and each of them.
As conclusions of law upon the foregoing facts the court states that the assumption by said John A. Eisman of the indebtedness set out in said deed from Pinkney
It is proper to say that every material fact averred in the complaint is found to be true; and no attempt is made to make the evidence a part of the record. The sufficiency of the evidence to sustain the special findings is not presented by motion for a new trial. The exceptions to the conclusions of law admit the correctness of the special findings, and so their correctness is unchallenged by any method or upon any ground; and an examination of the pleading discloses that such findings are within the issues. That the conclusions of law are warranted by these findings is clear. The decree resulted in subjecting .certain real estate to the payment of the promissory notes executed by the grantor Sellers as principal and grantee Eisman as surety, for the conveyance of which real estate there was no consideration in fact but the promise to pay said notes. The vendor’s liens of appellees Whalen, Kelley and Johnson, respectively, were created by the same instrument.
The controlling questions involved are practically the same as to each, and without further separate reference to the cross-complaints the decree is affirmed as to each of the appellees.