59 Ind. App. 488 | Ind. Ct. App. | 1915
Appellee brought this action against appellants to foreclose a mechanic’s lien on certain real estate in the city of Princeton, Indiana. The complaint contains the usual averments, and it is also alleged that subsequent to the filing of notice of the lien, Winfield P. Larcy and Julia E. Larcy, his wife, sold and conveyed the real estate to Jonah G. Lagrange, who now holds the same subject to the lien of appellee; that appellant, Margaret Lagrange, is the wife of said Jonah G., and the other appellants severally assert some title to, and lien upon said lands, or some part thereof; that neither of said parties has any title or lien upon the land that is not junior and subject to appellee’s lien.
To that part of the complaint which claims priority of lien, appellants, other than the Peoples National Bank, filed an answer which avers in substance that on October 25, 1907, appellant, Joñah G. Lagrange, as surety, and Win-field P. Larcy, as principal, executed their note to the American National Bank for $5,000, payable six months from date in consideration of a loan then made to Larcy for that amount; that Larcy received all of the consideration and Lagrange at no time received any part thereof; that at the time of the execution of the note, and to induce Lagrange to sign it as surety, Larcy promised and agreed to execute to Lagrange a mortgage on all of the real estate described in the complaint and certain other real estate, all of which real estate Larcy agreed to and did purchase with the $5,000 so borrowed by him; that said mortgage was executed on January 18, 1908, pursuant to their agreement and duly recorded and has never been released of record or cancelled; that at the date of the execution of the mortgage said Larcy was the owner of all the property described in it; that all of the property owned by Larcy was not of the value of more
The appellants Jonah G. and Margaret Lagrange-filed a separate partial answer averring substantially the - same facts.
To each of these paragraphs of answer appellee demurred for insufficiency of the facts alleged to constitute a defense. The demurrers were sustained and exceptions reserved. Appellants refused to plead further and the court found for appellee and against the appellants and rendered judgment
Both appellants and appellee have cited authority that apparently gives support to their contentions. On slightly Varying facts decisions may be found tending to support both views. But the case of Coburn v. Stephens, supra, removes all doubt as to the rule that should apply here. The issues, facts and circumstances are identical in every essential element with the ease at bar. The Supreme Court held that the holder of a mortgage who acquired the legal title to the mortgaged premises, upon which a mechanic’s lien had been acquired subsequent to the execution of the mortgage, was entitled to preserve the mortgage lien for his protection against such lien, and that the lien of his mortgage was not merged in the legal title. We therefore hold that the trial court erred in sustaining the demurrers to each of the paragraphs of answer. The judgment is reversed with instructions to overrule the demurrers to each of the paragraphs of answer, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 108 N. E. 873. Merger in the case of a mortgage, see 99 Am. St. 100. Merger of estates as dependent upon intention of parties, see 7 Ann. Cas. 700; Assent of. creditor as essential to novation by substitution of debtor, see Ann. Cas. 1914 A 839.