43 Ind. 315 | Ind. | 1873
Gunn, one of the appellees, filed a complaint in the Tippecanoe Common Pleas, to foreclose a mortgage upon real estate, executed by Ward and wife to Weaver, to secure six promissory notes of five hundred dollars each, given by Ward to Weaver and assigned by Weaver to him. They were dated December 1st, 1868, and payable in one, two, three, four, five, and six years, with six per cent, interest, and ten if not paid at maturity. The note first falling due had been paid.
The complaint, in addition to the usual averments in a complaint of foreclosure, alleges, “that on or about the 13th day of July, 1869, the defendants William H. Ward and Mary A. Ward, his wife, sold and conveyed by deed said mortgaged real estate to said defendant McDill, for the sum and price of three thousand dollars, and said McDill accepted said deed and agreed to and with said William H. Ward to pay and satisfy to the plaintiff said notes above set forth, so made to said Weaver, and amounting to two thousand five hundred dollars, besides interest, as a part of the purchase-money of said real estate.”
Ward filed a cross complaint against McDill and Gunn, setting up substantially the same facts as were stated in the original complaint, and praying for a decree for specific performance against McDill and judgment against him for the full amount unpaid on the notes, that the mortgaged property be sold to pay the judgment, and that any balance left
McDill filed separate demurrers to the complaint and cross complaint, which were overruled, and exceptions taken. He also moved to strike out certain parts of the complaint, which was overruled, and he excepted.
He then filed an answer to the complaint and cross complaint of three paragraphs. 1st. The general denial to both complaints. The second purports to be an answer to the original complaint. It admits the notes and mortgage and the conveyance to him by Ward and wife, subject to the mortgage. It denies nothing, and concludes as follows: “ And as to all the rest of said plaintiff’s complaint, except that which seeks to subject to sale said realty described, to pay the debt secured by said mortgage, he says that no memorandum or note thereof is in writing signed by the defendant or by any one by him lawfully authorized thereunto ; wherefore, he says said plaintiff is not entitled to any personal judgment against this defendant, in case said realty is insufficient to pay said mortgage debt.” The third is an answer to the cross complaint. It admits the execution of the deed of conveyance by Ward and wife, and sets out a copy of the deed. It is an ordinary warranty deed, “subject to the purchase-money mortgage, now held by E. M. Weaver on the same,” and avers “ that said deed contains the entire agreement and contract between said parties in relation to said real estateand that said Ward is not entitled to the relief sought in his cross complaint.
Ward filed a demurrer to the third paragraph of the answer, on the ground that it did not state facts sufficient to constitute an answer to the cross complaint.
Gunn filed separate demurrers to the second and third paragraphs of the answer, on the ground that they did not state facts sufficient to constitute an answer to the complaint.
The demurrer to the second paragraph was sustained and overruled to the third. Exceptions were taken to both rulings.
McDill moved the court for a new trial and filed written causes therefor.
1st. That the verdict was contrary to law and evidence.
2d. That the court admitted improper evidence upon the trial of the cause, over his objections.
3d. The court committed an error in overruling the demurrer to the complaint and cross complaint, and in sustaining the demurrer to the second paragraph of. the answer.
4th. The verdict should have been for him on the evidence. The motion was overruled, and he excepted and filed his bill of exceptions, setting out the evidence.
Final judgment of foreclosure was rendered; also, several judgments against Ward and McDill for any sum remaining unpaid after the sale of the mortgaged premises, to be first levied of the properly of McDill, all without relief from valuation.
Errors are assigned for overruling the demurrer to the complaint and cross complaint; for overruling his motion to strike out parts of the cross complaint; for sustaining the demurrer of the appellant to the answer and cross complaint; and for overruling the motion for a new trial.
The second cause for a new trial is too general to raise any question. The attention of the court below was not called to any alleged improper evidence. We have uniformly held it necessary to point it out in the motion, in
The appellant relies chiefly upon the rulings of the court below upon the demurrers for a reversal of the judgment. He insists that the agreement to pay the notes and mortgage was an undertaking to pay the debt of another, and not binding upon him because not in writing. He also insists that by executing a deed conveying .the property “subject to the mortgage,” Ward precluded himself from establishing by parol a promise to pay the purchase-money;
Conveying the land subject to the mortgage does not tend to show that the appellant did not promise to pay for it. Its effect is to except the mortgage from the covenant against incumbrances. It does not affect the agreement to pay the purchase-money. Parol evidence may be introduced to show that the consideration has not been paid, or that it is more or less than the amount specified, notwithstanding the recital of the amount and the acknowledgment of its receipt in the deed; not for the purpose of defeating the conveyance, but to fix the amount of the consideration. 3 Washb. Real Prop. 327; Grout v. Townsend, 2 Hill N. Y. 554. Parol evidence may be given to show the real consideration of a deed, and that the purchaser took the conveyance subject to incumbrances and agreed to discharge them in addition to the consideration stated in the deed. Allen v. Lee, 1 Ind. 58; Rockhill v. Spraggs, 9 Ind. 30; Pitman v. Conner, 27 Ind. 337; Robinius v. Lister, 30 Ind. 142.
The promise to Ward to pay the notes and mortgage may be enforced by the holder. Bird v. Lanius, 7 Ind. 615 ; Day v. Patterson, 18 Ind. 114; Cross v. Truesdale, 28 Ind. 44; Davis v. Calloway, 30 Ind. 112; Marlett v. Wilson’s Ex'r, 30 Ind. 240; Burr v. Beers, 24 N. Y. 178. In the case last cited, it was held that the mortgagee might maintain a personal action against a grantee of the mortgaged premises, who had assumed to pay the incumbrance.
An additional brief is filed by the appellant, in which it is claimed that the judgment authorizing á sale without relief is erroneous. No objection was made or exception taken to the rendition of the judgment in that form, and no error has been assigned for that cause. If it was an error, it is not available to the appellant.
The judgment of the said Tippecanoe Common Pleas is affirmed, with costs.