91 Ind. 437 | Ind. | 1883
— The State, on relation of Anthony Heitz, brought this action against James E. Kackley and his sureties upon his official bond as sheriff, to recover such damages as the relator had sustained by reason of the alleged fact that such sheriff, upon an execution against William A. Wendling, had sold and delivered certain personal property of said Wend-ling upon which the relator had a prior lien by mortgage, without requiring the purchaser to comply with the conditions of such mortgage.
Issues were formed, a trial had, and a verdict returned for $725, upon which, over a motion for a new trial, judgment was rendered. This ruling is assigned as error.
Under the assignment that the verdict was contrary to the evidence, the appellants insist that nothing was due upon the appellee’s mortgage. The mortgage was upon a stock of drugs, counters, shelving, soda fountain, etc., the possession of which the mortgagor retained, and by the terms of the mortgage all sales in excess of current expenses were to be applied in payment of the mortgage. The property was not sold for more than a year after the mortgage was executed, and the appellants insist that enough of the goods were sold within this time to extinguish the mortgage. This was a question of fact that was, for aught that appears, properly submitted to the jury; and an examination of the evidence leads us to the conclusion that the fact was properly found. The mortgage
It is next insisted that the court erred in allowing the appellee to offer evidence that the mortgage was given to secure him in part against his liability as the mortgagor’s surety, and ■especially in allowing him to read in evidence certain notes, paid after the commencement of the suit, which were given by the appellee for money furnished to the mortgagor.
The appellants maintain that no such proof was admissible without an averment in the complaint that the mortgage was given as an indemnifying mortgage. In this we think they are mistaken. They alleged in their answer that the mortgage was executed without consideration, and for the purpose
No other point is raised, and as no error appears in the record the judgment should be affinned.
Pee, Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellants’ costs.