20 Ind. App. 462 | Ind. Ct. App. | 1898
The complaint of the appellee as administrator of the estate of Jennie B. Hagins, deceased, against the appellant, contained two paragraphs, and a demurrer to each of them for want of sufficient facts was overruled.
In the first paragraph it was shown that on the 26th day of September, 1881, one Charles Smith sold, and by deed of general -warranty conveyed, to Samuel K. Hagins, husband of the intestate, lot four in Yotaw’s addition to the city of Portland, Jay county, Indiana; that on November 28, 1881, said grantee executed to said grantor a promissory note for $2,000 for the balance of the purchase-money for said real estate, and on the same day, to secure the payment of the note, the grantee executed to the grantor.a mortgage on said real estate, and the intestate joined with her hus
When the intestate joined her husband in the first mortgage to Smith, the entire lot mortgaged was owned by the husband, and he was indebted to the mortgagee for the purchase-money, to secure which the mortgage was given. The second mortgage, executed by the same mortgagors to the same mortgagee, to secure the same purchase-money, was executed after the intestate had become the owner of the north one-third of said lot; but it was executed to correct a .mistake in the description of the mortgaged premises in the first mortgage, and therefore, though the intestate was a married woman, and the debt so secured in part by mortgage upon her separate property was
The whole lot remained bound to the mortgagee. The portion conveyed to the appellant became a primary security, while the portion owned by the intestate was a secondary security. It was the duty of appellant to protect from loss through the mortgage the intestate, whose real estate, thus standing as surety for him, he had so contracted to protect. For the violation of this duty she was entitled to recover to the extent of the damage suffered by her through loss of her said real estate. The mortgagee was entitled to avail himself of the agreement of assumption made by the appellant with the mortgagor, and one occupying the relation of surety by reason of ownership of a. part of the mortgaged real estate would have the right of subrogation to all rights and securities held by the creditor, including such an agreement of assumption, of which, in the case before us, the mortgagee does not appear to have availed himself. Wright v. Briggs, 99 Ind. 563. In the case at bar the appellant appears
It is alleged in the complaint that this conveyance by husband and wife of the real estate of the former Avas made for the purpose of protecting and saving to the intestate her part of the lot, and there was in the deed a special agreement, the performance of which by the appellant would have had that effect. The deed contained a stipulation for the benefit of the wife individually. The agreement that the appellant should assume and pay the encumbrance on the entire lot, including the wife’s separate part thereof, was made as part of the consideration, in a deed ’in which she joined for the purpose of releasing her inchoate interest in the land so conveyed. We think that if it were needed to resort to such a reason for permitting her to avail herself of the agreement of assumption to reimburse her for its breach, it might be treated as a contract made with her upon a sufficient consideration. But if the assumption of the mortgage debt and agreement to pay it should be regarded, so far as it was a promise to relieve her portion of the lot, as the promise of one person to another for the benefit of a third, it was founded upon a valuable consideration, which
The court sustained demurrers to the second, third, fourth and sixth paragraphs of the appellant’s answer. These rulings have been very briefly discussed by counsel for the appellant, and their references to the record relating to them are incorrect. These paragraphs relate to the suit to foreclose the mortgage, and to transactions between parties thereto other than the appellant and the intestate, and contain much irrelevant matter. It appears from them that there was no issue between the intestate and the appellant in the foreclosure suit. It does not appear that any personal judgment was rendered, but there was a decree of foreclosure, under which all the mortgaged real estate was sold. The fact that the intestate did not seek any affirmative relief in the foreclosure suit could-not release the appellant from Ms obligation to her. It was his duty, by reason of his contract of assumption, to make it unnecessary for her to take such measures to relieve her portion of the lot from the mortgage. It devolved upon him to make his own defense in the foreclosure suit, to which he was a party, and having failed therein and thereafter to prevent the loss to the intestate from which he had contracted to
In the fifth paragraph of answer, a demurrer to which was overruled, the appellant alleged, that in the negotiations for the purchase by him of the portion of the lot conveyed to him, he did not agree to assume and pay the mortgage debt, and that the intestate and her husband inserted such agreement in the deed without his knowledge or consent, and placed the-deed on record, the appellant not having read it, without telling him that they had inserted such provision, and without his knowledge that it did contain such provision.
The appellant’s demurrer to the second paragraph of reply to the fifth paragraph of answer was overruled. In this reply it was alleged, that after the execution of the deed of conveyance to the appellant, and after it had been recorded, the appellant went into possession of the real estate and into the buildings thereon situated, as the.owner of said real estate; that he continued in such possession and had the use of the property and received the rents and profits thereof until the foreclosure of the mortgage and the sale thereunder, and until the year for redemption had expired; that during all the time he so held the real estate he did so and claimed title to and owned the real estate by virtue of said deed of conveyance, and had no other title thereto; that when he went into possession, and while he so held, he had notice and knowledge of the contents of said deed, and that it was of record in the recorder’s office; that the use, rents and profits of the real estate while he so held possession were of the value of one thousand dollars. In argument for appellant it is said that this reply only avers that Fleming went into possession and collected rents with knowledge that the deed had been recorded. The
There is in the transcript a special finding of facts with the court’s conclusions of law thereon, and it is assigned that the court erred in its conclusions of law. This assignment, as has been decided often, is unavailing, for the reason that the special finding is not signed by the judge. The judgment is affirmed.