64 Ind. App. 677 | Ind. Ct. App. | 1917
This action was instituted by appellant Kober to recover on promissory notes, to foreclose a mortgage on real estate, and to expunge from the record a release of the mortgage,: which release he alleged to be a forgery. Appellee William A. Boyce suffered himself to be defaulted; all other appellees answered; and appellees Henry C. Fear and Laura B. Fear filed a cross-complaint to quiet title to the real
The following is a condensed statement of the special finding of facts: (1) That on December 28, 1907, William A. Boyce and his wife, Edith H. Boyce, sold and conveyed by warranty deed to Andrewville E. Hunter and his wife, Ida V. Hunter, certain real estate in Washington county, Indiana; and that said deed was duly recorded in the recorder’s office of said Washington county on December 31, 1907. .
(2) That as part of the purchase price for said real estate, Andrewville E. Hunter executed his four promissory notes, payable to the order of said William A. Boyce, at Peoples Bank, Indianapolis, Indiana, in six, twelve, eighteen and twenty-four months from date, and in the sum of $500 each; that to secure the payment of said notes the said Hunter and Hunter on said day executed to the said William A. Boyce their mortgage on said real estate; and that said mortgage was duly recorded in the office of the recorder of said Washington county on December 31, 1907.
(3) That on December 28, 1907, William A. Kober sold to said William A. Boyce a tract of land in Jay county, Indiana, and as part of the consideration therefor the said William A. Boyce executed to said Kober the principal note herein sued on in the sum of $1,500, and to secure the payment thereof turned over to said Kober and assigned by endorsement thereon and by his written agreement, as collateral security, the four promissory notes mentioned in item two of this finding, and also assigned the said mortgage to said Kober;
(4) That on December 28, 1907, the said Andrew-ville E. Hunter and his said wife sold and conveyed to said William A. Boyce by deed of general warranty the said real estate in said Washington county and mentioned in item one of this finding; that as part of the consideration for said real estate the said William A. Boyce assumed and agreed to pay all incumbrances on said land, including the four promissory notes executed by Andrewville E. Hunter to William A. Boyce, which notes were secured by the mortgage mentioned in item two of this finding, being the identical notes and mortgage assigned to Kober by said William A. Boyce; and that said deed was duly'recorded in the office of the recorder of said Washington county on March 19, 1908.,
(5) That on April 11, 1908, the said William A. Boyce executed to Henry C. Fear and Laura B. Fear a deed of general warranty to the said real estate in said Washington county, which real estate is described in item one of this finding; and"that said Fear and Fear, before the filing of this suit had fully paid the said William A. Boyce the purchase money therefor.
(6) That said Fear and Fear, before receiving and accepting said deed from said Boyce, had the records of the offices of the clerk, treasurer, auditor and recorder of said Washington county examined and an abstract of the title to the real estate described in item one of this finding made, as said title appeared from the records of said several offices; that the said records showed that the mortgage given by said Hunter and Hunter to said Boyce had been fully paid and satisfied and that a release of the said mortgage had been duly recorded in the office of the recorder of said Washington county, and that said pelease purported to have been signed by
(7) That the said William A. Boyce and the said William .A. Kober, on March 17, 1908, at the city of Indianapolis, Indiana, duly executed and acknowledged a release and satisfaction in full of the mortgage given by said Hunter and Hunter to said William A. Boyce and by him assigned to said William A. Kober; and that said release of the said mortgage was duly recorded in the office of the recorder of said Washington county on March 19, 1908..
(8) That there is now due and unpaid on the said $1,500 note executed by said Boyce to said Kober the sum of ■ $1,009.93.
On the finding of facts the court stated conclusions of law to the effect that the law is with Kober as against Boyce, and that Kober should recover of and from Boyce the sum of $1,009.98 together with his costs; that the law is with all the other appellees as against Kober; and that the law is with appellees Fear and Fear as against Kober with respect to their cross-complaint, and that they should have their title to the land described in item one of the finding quieted as against him.
The following errors are assigned: (1) The overruling of appellant’s demurrer to the seventh paragraph of the separate answer of appellees Henry C. Fear and Laura B. Fear. (2) The overruling of appellant’s demurrer to the ninth paragraph of the separate answer of said Henry C. Fear and Laura B. Fear. (3) The
Under the fourth assignment we are called upon to review the action of the court in overruling the motion for a new trial. This motion contains nine specifications :
(6) The court erred in excluding a document marked exhibit “H”, which document the parties call “the certified copy of a money order,” but which in fact purports to be a certified copy of an application for a money order. Our examination of the bill of exceptions discloses that this document never was offered in evidence.
(9) This specification rests on the ground of newly-discovered evidence. It appears on the face of the document purporting to be a release of the mortgage
We are of the opinion that substantial justice to all the parties has been done by the trial court. Judgment affirmed.
Note. — Reported in 114 N. E. 891.