59 Ind. App. 319 | Ind. Ct. App. | 1914
Appellee brought this suit to reinstate a certain mortgage on real estate owned by Leslie C. Hunter in his lifetime. The case was tried by the court and appellee prevailed. The court made a special finding of facts from which it appears that on December 27,1909, Leslie C. Hunter purchased a part of lot 44 in Owensville from John C. Kendle for the price of $3,000 and that as a part of the purchase price he executed a note to Kendle for $2,000 and secured the same by a mortgage, on the lot purchased, signed by himself and his wife, Lasia L. Hunter; that on January 3, 1910, Kendle sold this note to appellee bank for the sum of $2,000 cash; that the mortgage was recorded by Kendle but that it was not assigned to the bank. The note was endorsed by Kendle in blank.
Shortly before the note became due Kendle called upon the bank -and requested that when the note was paid he should be informed of the fact. After the note became due and after Leslie C. Hunter had been three times notified by the bank, he wrote a letter to the bank requesting it to send him a note for the amount of $2,500 due in one year and promising to get one Harry O. Pollard to sign it as security. In response to this letter the bank sent this note to Leslie C. Hunter, who returned it to the bank on January 25, 1911, signed by himself and purporting to be signed by Harry O. Pollard. The bank investigated the financial standing of Harry O. Pollard and found that he was solvent and that his signature to the note would make it good. On January 26, 1911, the bank, believing that the name of Harry O. Pollard
The court, further finds that on March 23, 1911, after the mortgage securing the $2,000 note had been released by Kendle, Leslie C. Hunter borrowed $2,000 from the Citizen’s Trust and Savings Bank of Princeton and, to secure the same executed a mortgage in which his wife joined, on the real estate which he had formerly mortgaged to secure the note sold by Kendle to appellee bank. On April 10, 1911, Leslie C. Hunter borrowed $400 from Elza Mounts and on September 18, 1911, he borrowed $2,650 from the First National Bank of Poseyville, and, on October 10, 1911, he borrowed $275 from the Owensville Building and Loan Association. For each of the sums so borrowed he executed his note and each of the notes so executed bears the name of Harry O. Pollard as security and the $2,650 note also bore the name of Harvey Knowles as surety, but the names of the sureties to all of these notes are forgeries. These notes have all been filed and are pending as claims against the estate of Leslie C. Hunter.
We have not set out the facts as fully as they are shown in the finding of the court but have stated only so much as is necessary to a proper understanding of the case.
Upon the facts found the eourt stated as its conclusions of law that the American National Bank of Princeton was the
It is evident, we think, from what has been said, that the trial court properly reached the conclusion that the facts found did not show an estoppel as against the mortgagee and that the mortgage should be reinstated and held to be . superior lien to that of the general creditors named in the special finding.
The court did not err in overruling the demurrer to the complaint and-the conclusions of law were correct. Judgment affirmed.
Note. — Reported in 103 N. E. 809. As to revival of mortgage when satisfied by mistake, see 5 Am. St. 703. As to the right to show estoppel under general denial in repleyin, see 20 Ann. Cas. 300. As to the right to reinstatement of mortgage released or discharged by mistake, see 58 L. R. A. 788; 26 L. R. A. (N. S.) 816; 28 L. R. A. (N. S.) 825, 904. See, also, under (1) 27 Cyc. 1287; (2) 7 Cyc. 1013; (4, 7) 27 Cyc. 1225; (5) 27 Cyc. 1433; (6) 16 Cyc. 806.