68 Ind. 208 | Ind. | 1879
In this action, the appellee sued the appellants, in a complaint of a single paragraph, wherein he alleged, in substance, that on the 30th day of April, 1875, one George Hazzard sold and conveyed to the appellant Jacob Kennard two certain parcels of real estate, particularly described, in Henry county, Indiana, and, for a part of the purchase-money for said real estate, the appellant Kennard made and delivered to said Hazzard his promissory note, of that date, filed with and made a part of said complaint; that by said note the appellant Kennard promised to pay said Hazzard on or before December 25th, 1877, the sum of five hundred dollars, with ten per cent, interest from date; that no security of any kind was given by the appellant Kennard to said Hazzard, nor accepted by him, for the payment of said note or of the said purchase-money for which the note was given ; but that it
To this complaint the appellants Kennard and his wife-answered by a general denial ; and the appellant Abram Gaar answered separately*and specially. In his answer-the said Gaar alleged, in substance, that, on the 9th day of March, 1877, he loaned to the said Jacob Kennard the sum of one thousand two hundred dollars, to be repaid at the end of five years from that date, with ten per cent, interest thereon payable semi-annually, and said Jacob executed his notes to said Gaar to evidence the said payments; that, to-secure the payment of said'loan and interest, the said Jacob and Rebecca Kennardi then and there executed to.
The cause was tried by the court, and a finding was made for the appellee, assessing his damages in the amount due on the note described in his complaint; that the same was due on account of the purchase-money of the real estate therein described, and that the allegations of said complaint were true.
The appellant Abram Gaar separately moved the court for a new trial, which motion was overruled, and to this decision he excepted. Judgment was then rendered in favor of the appellee, for the amount found due on the note described in his complaint; that this amount was secured to him by a vendor’s lien on said real estate; and that said lien should be enforced against said real estate and take priority over the said mortgage of the appellant Abram Gaar thereon. From this judgment all the defendants below have appealed to this court, and have here assigned, as error, the overruling of said Abram Gaar’s motion for a new trial.
The only point made by the appellants’ counsel, in his brief of this cause in this court, is that there is absolutely
The gist of the appellee’s complaint in this case, in so far as it was attempted or intended to state a cause of action therein against the appellant Abram Gaar,' was contained in the averments, that at the time he made his loan to said Jacob Kennard, and, to secure such loan with interest, took a mortgage on the real estate described in said complaint, from said Kennard and his wife, “ said Gaar had full knowledge of the existence of said indebtedness to said Hazzard, and said endorsement and assignment thereof, and that it was for said purchase-money, and that said Hazzard and the plaintiff, as his assignee, then held a vendor’s lien on said land to secure the payment of the same.”
These averments of the complaint, we need hardly say, were material, for they constituted and contained the very substance of the appellee’s cause of action against the appellant Abram Gaar. They were denied, generally and specifically, in and by the answer of said Gaar. Therefore, it devolved upon the appellee, on the trial of the cause, to sustain these averments by competent evidence, as he had the burthen of the issues.
There was no evidence whatever introduced on the trial, which tended even remotely to establish the truth of
Clearly, therefore, as it seems to us, the finding of the court for the appellee, as against the appellant Abram Gaar, giving the appellee’s vendor’s lien a priority over the mortgage lien of said Gaar, on the lands described in the complaint, was not sustained by, but was in fact contrary to, the evidence in the record. This is not a case of conflicting evidence, hut there is an entire failure of evidence to sustain the appellee’s case against the appellant Abram Gaar.
The court erred in overruling the motion of said Abram Gaar for a new trial of this cause.
As to the defendants Jacob and Rebecca Kennard, there is nothing in the record which tends to show that Jacob Kennard did not and does not owe the appellee the precise sum of money for which the judgment was rendered. The Kennards, therefore, are not personally entitled to a reversal of the judgment below, on their own account; hut, as the affirmance of the judgment as to them might possibly embarrass the appellee in the farther prosecution of his alleged cause of action against the appellant Abram Gaar, it has seemed to us that the ends of justice would probably be subserved by the reversal of the entire judgment, as to each and all of the appellants, and this is done accordingly.
The judgment is reversed, at the appellee’s costs, and the cause is remanded-for a new trial.