78 Ind. 282 | Ind. | 1881
Appellant sued the appellee upon a mortgage reading as follows:
“ I, Cartaline N. Gibson (President of the Brandywine, Boggstown and Sugar Creek Extension Turnpike Company), of Shelby county, State of Indiana, mortgage and warrant to Eli Johnson the following real estate situate in Shelby county, Indiana, to wit: Brandywine, Boggstown and Sugar Creek Extension Turnpike Road, to secure the payment of $672.62, due June 1st, 1872, interest at 10 percent., payable quarterly, and the mortgagor expressly agrees to pay the sum of money above named without relief from valuation laws. In witness whereof, the mortgagor has hereto set his hand and seal this 26th day of December, 1870.
(Signed) “C. N. Gibson,
President Brandywine, Boggstown and Sugar Creek Extension Turnpike Co,”
Appellant demurred to this answer, the court overruled the demurrer, appellant elected to stand upon his demurrer, and the court gave judgment for the appellee. From this judgment appellant appeals.
Appellant insists that the mortgage created a personal liability against the appellee, and cites, as sustaining his proposition, the following cases: Hays v. Crutcher, 54 Ind. 260; Aimen v. Hardin, 60 Ind. 119; Pearse v. Welborn, 42 Ind. 331. Appellee contends that the mortgage is that of the corporation, and that no cause of action is, therefore, shown against him upon the promise contained in the mortgage. Counsel cite, as supporting his contention, Pitman v. Kintner, 5 Blackf. 250 (33 Am. Dec. 459); Mackenzie v. The Board, etc., 72 Ind. 189; Gaff v. Theis, 33 Ind. 307; Pearse v. Welborn, supra; Means v. Swormstedt, 32 Ind. 87. We do not, however, feel called upon to decide whether the mortgage, considered apart from all the other circumstances, is that of the corporation, or that of
In the mortgage on which appellant's case is founded, there is but one mortgagor and one promise. In the most solemn manner known to the law, he has obtained a judgment that the mortgage is that of the corporation, and he ought not now
It is urged in a supplemental brief filed by the appellant, that the answer does not show that there was any such corporation as the Brandywine, Boggstown and Sugar Creek Extension Turnpike Company. This question is really disposed of by what has already been said. The appellant has recognized the existence of the corporation and has treated it as having executed the very contract upon which he now sues, and can not now deny its existence. Baker v. Neff, 73 Ind. 68. But, more than this, the answer shows the use of a corporate name, the existence of corporate organization, and the exercise of corporate functions in which the appellant as a corporate officer participated. This abundantly shows corporate existence. Indeed, the rule is that where the pleading shows the name to be such as imports a corporation,* it will be sufficient. Indianapolis Sun Co. v. Horrell, 53 Ind. 527; Mackenzie v. The Board, etc., 72 Ind. 189.
Judgment affirmed.