81 Ind. 459 | Ind. | 1882
The following are the facts out of which this suit grew: On the 3d day of January, 1876, appelleeHopkins stayed a judgment in the Daviess Circuit Court, rendered against appellee Hart and one Thomas, for $1,484, and took from Hart, as security, an indemnifying mortgage-upon a stock of dry goods and other personal property, which mortgage was duly recorded. And on the 12th day of November, 1879, he paid off the balance of the judgment, being over $1,200.
On the 18th day of February, 1876, appellants endorsed for said Hart a note to the First National Bank of Franklin, Indiana, for $1,000, and at the same time took an indemnifying mortgage from said Hart upon the same stock of goods and a part of the other personal property, subject to Hopkins’ mortgage, which mortgage was also duly recorded. Appellants paid off the note at maturity in June following.
The stay on the judgment expired June 22d, 1876. On the 20th of September, 1876, appellants purchased of appellee Hart $500 worth of the goods, at invoice price, for which they agreed to give a credit on the amount they had paid on the bank note.
Hart had retained the possession, use, management, control and sale of the mortgaged property from the date of the Hopkins mortgage to the day of the sale to appellants, and in the mean time had sold of the goods to the amount of $4,600, and had replaced with new stock to the amount of $2,151.18, and had appropriated some of the goods to the use of his family.
On the 13th of December, 1879, appellee Hopkins commenced this suit against appellants for a conversion of the goods. He sets forth in his complaint his mortgage and the the payment of the judgment; he alleges the insolvency of both Hart and Thomas at the date of the expiration of the
A demurrer was overruled to the complaint, and answers and replies filed. There was a trial by jury; verdict for appellee Hopkins, and over a motion for a new trial judgment was rendered for $425.25.
Hart did not join in the appeal, and he is, therefore, joined as appellee in this, court.
The errors assigned are, overruling the demurrer to the complaint, and overruling the motion for a new trial.
The reasons assigned for a new trial are, that the verdict is not sustained by sufficient evidence, and is contrary to law.
As to the first error assigned, the complaint does not state all the facts of the case; it does not shoAV that appellants were ■creditors of Hart, and that they had taken goods, under a contract with Hart, in payment of so much of their debt against him, but charges appellants with being tortfeasors, without •any claim of right. As against a wrong-doer, appellee’s mortgage would authorize him to maintain the suit. 'We think the complaint, upon its face, states facts sufficient to constitute a cause of action, and there was no error in overruling the demurrer to the complaint.
As to whether the evidence supported the verdict, and as to whether it was according to law, depend upon the validity of appellee’s mortgage as against appellants.
There is no conflict in, or dispute about, the testimony; we have substantially stated the facts as testified to.
Appellee had the right to take possession of the property,
In the first case above named, this court said: “ Under this statute, any recorded mortgage, which is valid between the parties to it, will be upheld against third parties, unless, for some reason, it is actually fraudulent as against them; and whether fraudulent must be deemed a question of fact, to be determined according to the circumstances of the particular case.”
The verdict is sustained by the evidence, and is not contrary to law.
There was no error in overruling the motion for a new trial.
The judgment below ought to be affirmed.
Pee Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment below be and it is hereby in all things affirmed, with costs.