48 Ind. App. 562 | Ind. Ct. App. | 1911
Suit by appellant against appellee, for subrogation to the rights of the State of Indiana under a school-fund mortgage executed by appellant’s decedent, John Gregory, and to enforce the lien thereof against the real estate described therein and owned by appellee.
Omitting the formal parts of the complaint, it, in substance, alleges that on April 12, 1884, John, Hannah E. and Benjamin R. Gregory were the owners in fee simple, as tenants in common, of eighty acres of real estate in Warren county, Indiana; that on November 29, 1884, said John Gregory executed to the State of Indiana his note for $500, due on or before December 1, 1889; that, to secure said note, all the aforesaid owners of said real estate duly executed a mortgage thereon to the State of Indiana; that it was duly recorded within the time required by the law; that on November 25, 1889, said John Gregory, his wife Lila joining him, and Hannah Gregory, by deed of general warranty, duly executed, conveyed to said Benjamin R. Gregory “for the sum of $1,” the undivided two-thirds part of 200 acres of real estate in said county, including the 80 acres so mortgaged as aforesaid; that said conveyance was made siibject to all liens and charges now existing thereon, and especially subject to a mortgage for $3,500, due to William C. Smith, which mortgage said Benjamin R. Gregory agreed to pay; that said deed was duly accepted by the grantee, and duly recorded on November 26, 1889, in the recorder’s office of said Warren county; that on November 25, 1889, said Benjamin R. Gregory and wife, by warranty deed, duly executed, conveyed said real estate, including the 80 acres aforesaid, to appellee, for a consideration of $5,000, and the deed was duly recorded within the time allowed by law; that on December 2, 1896, said Benjamin R. Gregory died, and his estate has not been administered on; that on November 7, 1908, John Gregory, appellant’s decedent, died; that the auditor of said county, on July 21, 1909, filed a verified claim against the estate of said John Gregory,- deceased, for
Appellee answered by a general denial, and by several paragraphs of affirmative answer, to the sixth, seventh, eighth and ninth of which demurrers were overruled, and the rulings thereon are here assigned as errors; also the overruling of appellant’s motion for a new trial.
The first question arising under the assignment of errors relates to the legal effect of the language employed in the deed from John Gregory and others to Benjamin R. Gregory.
The mortgage for $8,500, especially mentioned, seems to have covered all the 200 acres conveyed by the deed, but was junior to the mortgage for $500, to the State of Indiana, on the 80 acres included in the conveyance; but the latter mortgage was not mentioned in the deed, except as it was covered by the general clause, “subject to all liens,” etc.
The contention of appellant is that such conveyance, ipso facto, made the real estate the primary source of funds for the payment of the mortgage debt, and that John Gregory therefter occupied the position of surety, instead of principal, as originally, and up to the time of the conveyance, and that appellee, as grantee of Benjamin R. Gregory, took the real estate charged with such primary liability for the payment of the mortgage.
Where a person takes a deed to real estate subject to encumbrances thereon, he does not thereby become personally liable to discharge the preexisting liens, but, in the absence
The note for $500 was executed by John Gregory alone, but the mortgage securing it was executed on eighty acres of real estate owned jointly by the maker of the note, Benjamin R. Gregory and Hannah E. Gregory. .The note, by its terms, was due December 1, 1889, and on November 25, 1889, John Gregory and -wife and Hannah E. Gregory conveyed to Benjamin R. Gregory their undivided two-thirds interest in 200 acres of real estate, including the aforesaid 80 acres, for a named consideration of $1, “subject to all liens and charges” existing thereon, and provided that such land was especially subject to a mortgage for $3,500, which, by the terms of the deed, the grantee agreed to pay.
On the same day, Benjamin R. Gregory, by warranty deed, conveyed the same real estate to appellee, for a consideration of $5,000, subject only to the mortgage for $3,500.
As already shown, the language of the deed — “subject to
To constitute a good answer in this case, facts must be alleged that in some way meet or avoid the language of the deed, the effect of which is as before stated. The statement that the debt remained the individual debt of John Gregory after the execution of his deed, whether considered as a conclusion or as the averment of an ultimate fact, is insufficient to overcome the presumption that the grantee has reserved out of the consideration the amount of the mortgage. In any event, the obligation remained the individual debt of John Gregory until paid, the only effect of the deed being tO' change him from the position of principal to that of surety as against the grantee and the mortgaged premises. For failure to aver facts showing that John Gregory was primarily liable as principal after the execution of the deed, the sixth paragraph is insufficient as an answer to the complaint. Weir v. State, ex rel. (1903), 161 Ind. 435; Davis v. Clements (1897), 148 Ind. 605; Grand Lodge, etc., v. Hall (1903), 31 Ind. App. 107.
The general averments of the seventh, eighth and ninth paragraphs of answer are substantially the same.
The insufficiency of the seventh paragraph of answer is urged, on the ground that it is an attempt to vary or modify a written instrument by a parol agreement; that there is no consideration shown for the alleged promise of John Gregory to pay the debt, and that the alleged payments of interest were purely voluntary. The gist of this paragraph of answer is that at the ti&e of the execution of the deed to Benjamin R. Gregory it was agreed by John Gregory that the note for $500, signed by him alone, was to be his individual debt, that he would pay it in full, and cause the mortgage to be satisfied; that, in pursuance of such agreement, he did pay interest as therein set out, and after his death his administratrix paid the debt in full. This shows an agreement, at the time of the execution of the deed, re
Where there is an agreement between the grantor and grantee, made at or before the time of the execution of the deed as to the payment of an encumbrance, though not expressed in the instrument, it may be proved by parol. McDill v. Gunn (1873), 43 Ind. 315, 319; Pickett v. Green (1889), 120 Ind. 584, 588; Bever v. Bever (1896), 144 Ind. 157, 162.
The court did not err in overruling the demurrer to the seventh paragraph of answer.
It is urged that if the promise on the part of John Gregory was an agreement to pay the debt of another, and was not shown to be in writing, it is within the statute of frauds and void; that no consideration is shown, and the answer is not good as an estoppel, because all the facts were equally known to both parties.
It appears from the pleading, however, that appellee accepted the deed, not knowing of the mortgage, relying upon representations of his grantor, who conveyed by statutory warranty deed; that the debt was the personal obligation of John Gregory, and that appellee’s right of action, if not
In 6 Am. and Eng. Eney, Law (2d ed.) 748, it is said: “Forbearance to sue upon any legal demand is a valuable consideration for a promise either by the party liable or by a third party.” In the same volume it is said: “If both parties bona fide believe that the plaintiff’s demand is just, his forbearance will be a valuable consideration.” 6 Am. and Eng. Ency. Law (2d ed.) 742.
In the case of Cornell v. Central Electric Co. (1895), 61 Ill. App. 325, on page 327, it is said: “Nor is it material that the certain right to recover in the suit forborne should exist. If the right were honestly asserted, though a doubtful one, the agreement to forbear its prosecution is based upon a sufficient consideration.” See, also, Honeyman v. Jarvis (1875), 79 Ill. 318; Knotts v. Preble (1869), 50 Ill. 226, 99 Am. Dec. 514.
Anything is a valuable consideration for a contract that is of advantage to the one or of disadvantage to the other. Where parties agree to a consideration of indeterminate value, the courts will not substitute their judgment for that of the parties, but will uphold the contract. Ditmar v. West (1893), 7 Ind. App. 637; Donahoe v. Rich (1891), 2 Ind. App. 540, 546; Johnson v. Staley (1894), 32 Ind. App. 628; Coffin v. Trustees, etc. (1883), 92 Ind. 337, 341; Wills v. Ross (1881), 77 Ind. 1, 40 Am. Rep. 279; Giles v. Ackles (1848), 9 Pa. St. 147, 49 Am. Dec. 551; Pearsell Mfg. Co. v. Jeffreys (1904), 183 Mo. 386, 81 S. W. 901, 105 Am. St. 496.
The court made a general finding for defendant, and rendered judgment accordingly, from which plaintiff appealed.
In the case of Norris v. Tice (1895), 13 Ind App. 17, this court, by Reinhard, J., on page 21, said: “The decided cases establish the rule in this State that it is harmful error to overrule a demurrer to a bad paragraph of answer, even if the same facts could have been proved under another paragraph which is good. The ruling of the court upholding the bad pleading is a judicial declaration that the defense therein pleaded is sufficient to bar the action, if proved, and such a ruling is equivalent to the establishment of a theory unjustly cutting off the plaintiff from his rights. There is a marked difference between overruling a demurrer to a bad answer and sustaining a demurrer to a good answer, the failure to observe which has led to great confusion in the decisions.”
In the case of Ryan v. Hurley (1889), 119 Ind. 115, 117, our Supreme Court, in discussing the question where there were several paragraphs of complaint, all held good below and part held to be insufficient on appeal, said: ‘ ‘ The find
In the case of Belt R., etc., Co. v. Mann, supra, on page 91, Mitchell, J., said: “Where a verdict is based upon an entire complaint, which contains two or more paragraphs, if either paragraph is bad, the judgment will be reversed. * * * In such a case, the ruling must stand or fall upon its own merits. The evidence, or the result reached, cannot be considered in determining whether the complaint was sufficient.”
Tn the ease of Wilson v. Town of Monticello (1882), 85 Ind. 10, on page 20, Elliott, J., said: “Where good answers are held bad on demurrer or are rejected oh motion, the defendant is entitled to the benefit of the exception reserved upon that ruling, unless there are others entitling him to put in evidence substantially the same matters as are pleaded in the answers held bad or rejected. The evidence is not to be looked to for the purpose of discovering whether the ruling did or did not do him harm. Where a plea is struck down, the presumption is that the rule of law involved in the ruling was acted upon throughout the case, and the defendant is not bound to again present the question. An objection once well and fully presented, and properly and adequately reserved, does not need to be repeated at subsequent stages of the ease. A defendant who receives the judgment of the court upon his answer may accept that ruling as the declara
In the case of Fleetwood v. Brown (1887), 109 Ind. 567, 573, Zollars, J., in discussing cases cited to sustain the contention that the evidence may be looked to to cure an error in ruling upon a demurrer to an answer, said: “It was not therein held, or intended to be held, that this court may look to the evidence to ascertain whether or not the sustaining of a demurrer to a good paragraph of an answer was a harmless error. It has never been so held by this court. On the contrary, the holding has been, that in such a case, the evidence is not to be looked to for the purpose of discovering whether the ruling did or did not do harm.”
Aside from general statements, the only Indiana case that seems to hold that the evidence may be, and in some cases should be, examined, even when conflicting, to determine whether an erroneous ruling upon a demurrer was or was not harmful, is that of McFadden v. Schroeder (1894), 9 Ind. App. 49. In that case the plaintiff recovered an amount much smaller than he claimed, and on appeal assigned error of the court in overruling a demurrer to a paragraph of answer, which on appeal was held insufficient. It was held that the evidence admitted under the erroneous answer went to the question of the value of the goods, and that since the jury found the value to be much less than shown by this evidence, the court was warranted in holding the error’, in overruling the demurrer to the bad answer, harmless.
In Elliott, App. Proc. §638, it is said: “It is possible that where there is absolutely no conflict in the evidence, it may be determined from an inspection of the evidence, but the doctrine certainly cannot be correctly applied in cases where
We believe this to be a correct statement of the general rule, and it is fully sustained by the overwhelming weight of authority, and by the decisions of this court and the Supreme Court rendered both before and since the decision of the case of McFadden v. Schroeder, supra. To the extent, therefore, that the case holds that an appellate tribunal, in determining the effect of a ruling on demurrer, may, or should, look to the evidence where there is a conflict therein, or where it is of such a character that different conclusions may be drawn therefrom by reasonable minds, the case is overruled.
The following cases throw some light upon the question, and support the conclusions already announced: McComas v. Haas (1884), 93 Ind. 276; Messick v. Midland R. Co. (1891), 128 Ind. 81, 84; Hormann v. Hartmetz (1891), 128 Ind. 353; Bowlus v. Phenix Ins. Co. (1892), 133 Ind. 106, 118, 20 L. R. A. 400; Jackson v. Neal (1894), 136 Ind. 173; Pyle v. Peyton (1896), 146 Ind. 90, 93; Norris v. Tice (1895), 13 Ind. App. 17; Kern v. Saul (1895), 14 Ind. App. 72; Kniss v. Holbrook (1896), 16 Ind. App. 229; Elliott, App. Proc. §§591, 634, 637, 638, 669.
A person who claims that an error is harmless should take the burden of showing it to be so; for the time required by the court to ascertain the fact, unaided by counsel, couLd, with more justice, be applied to the disposition of the business of other litigants awaiting the action of the court. If this is not done by counsel, the matter will, of necessity, be, to a large extent, discretionary with the court, for in many cases, even though there is a total failure of evidence under the bad paragraph, the fact is not readily ascertainable.
Applying the rule thus interpreted to this case, there
The language of the deeds, with reference to encumbrances and the consideration, is such as to warrant a court in adopting a construction placed thereon and acted upon by the parties, if fully established by the evidence; but such possibility does not render harmless the ruling on the demurrer.
The questions of law arising on the motion for a new trial have already been decided by this opinion, and the only remaining question is the sufficiency of the evidence to support the finding and judgment. But this we need not pass upon, as the case must be reversed because of the errors in rulings upon the demurrers to the answers.
The judgment is therefore reversed, with instructions to