English v. Roche

| Ind. | Dec 18, 1854

Hovey, J.

Robert English and Michael English, being indebted to Henry Ossum in his lifetime, executed and delivered to him. a mortgage on the following real estate in Wabash county, to secure the payment of the same, to-wit: “The upper section of the two sections lying west of the Salamony river, granted to Susan Richardville by John Richardville in his late will and testament, the section hereby sold lying and being on the south side of the Wabash river, opposite to the town of Lagro, and commencing at the mouth of the Salamony river, thence running down Wabash river, according to the survey made by the general government.”

Hannah English, wife of Robert, and Martha English, wife of Michael, joined in the mortgage, which was acknowledged in due form.

After the execution and delivery of the mortgage, Henry Ossum departed this life intestate, and John Roche and William Ossum were duly appointed administrators of his estate.

The bill was filed to foreclose the mortgage, and at the September term, 1851, the record recites that the defendants, Michael English, Robert English, Hannah English and Martha English appeared by their attorneys, Cox and Connell, and filed their general demurrer to said bill. The demurrer which follows is in the names of Robert and Michael, the names of their wives not being inserted. The demurrer was overruled, “ and the defendants, Robert English, Michael English, Martha English and Hamah English, refusing to withdraw said demurrer, or further to answer said bill, the Court do now order, adjudge and decree that the matters and things set forth in said complainants’ bill are true,” and rendered a decree for the complainants for the sum of 5,731 dollars and 25 cents, payable in one hundred and eighty days, and in default of payment, that said mortgaged premises should be sold, &c.

The defendants below bring the case here on error, and insist that the decree should be reversed—

1. “Because the bill and mortgage do not sufficie. describe the premises.”

We can not perceive anything in this objection, no apparent ambiguity in the description, and the la: cribed can be easily found, and its boundaries ascer The description is sufficient whenever the land into be mortgaged can be ascertained by it. See Morse v. Dewey, 3 N. H. 535.—Buck v. Hardy, 6 Greenl. 162.

2. “ The bill makes John Stewart, John P. Yelverton and Lycmgus Egerston parties, without showing-any interest they may have had in the matters in controversy.”

There is no decree against them, and the other parties to the bill have no right to complain, as they have received no injury; but the complainants must be taxed with the costs occasioned by their being parties.

3. “ The bill does not sufficiently show that the said defendants in error are the administrators of Henry Ossum, deceased.”

There is nothing in this objection. The complainants describe themselves as “administrators of the goods and chattels, rights, credits, moneys and effects which were of Henry Ossum, late of Huntington county, deceased, who died intestate.” The bill further states that “on or about the 1st day of October, 1848, said Henry Ossum died intestate, and that your orators were duly appointed,” &c.

D. M. Cox, for the plaintiffs.

4. “The decree could not be legally made until guardians ad litem were appointed by the Court for the wives of Robert and Michael.”

Husbands have the right to enter appearances for their wives by attorney. 1 Dan. Ch. Pr. 217. The record shows they did so appear.

5. “ The exhibits do not appear to have been proven.”

The case of Ward v. Kelly, 1 Ind. 101" court="Ind." date_filed="1848-06-06" href="https://app.midpage.ai/document/ward-v-kelly-7031533?utm_source=webapp" opinion_id="7031533">1 Ind. 101, is considered as overruled by the reasoning in the case of Brown v. Woodbury, decided at the May term, 1854 ⁽¹⁾. In the last-named case, the Court held that the proper mode of showing that exhibits had not been proven, is by bill of exceptions.

Per Curiam.

The decree is reversed as to the costs which accrued by reason of the joinder of Stewart, Yelverton and Egerston as defendants. The residue is affirmed.

(1) 5 Ind. R. 254.