16 Ind. 284 | Ind. | 1861
The appellee, who was the plaintiff, brought an action against the appellants, alleging in his complaint,
The relief prayed is, that judgment be rendered against William and John Mendenhall for the amount due on the notes; and that a decree be entered, directing the sale of the lands for the payment of such judgment, in case the same can not be collected on execution against the Mendenhalls, out of property belonging to them, and subject to execution, and for general relief, &c.
William and John Mendenhall were defaulted. Robinson and Bennett answered: 1. That the plaintiff is not the . owner of the notes described in the complaint. 2. That they are innocent purchasers, having no notice whatever of the plaintiff’s lien on the lands, &c. Issues having been made, the cause was submitted to the Court, who found for the plaintiff, and having refused a new trial, rendered a judgment and decree in accordance with the prayer of the complaint. The record shows that the plaintiff, upon the trial, offered in evidence the notes in suit, “ to the introduction of which the defendants objected, and in support of their objection proposed to prove, that while the issues were being made, there was on each note an indorsement showing the assignment of each to another person, and that the indorsements then on the notes had been afterward erased.” The objection was overruled, and the defendants'excepted. This exception is not well taken. “ The possession of a note by the payee is prima faoie evidence that he is the owner of it, although there may be on the note a special indorsement of it by him to a third
It is further shownj that the plaintiff introduced John Mendenhall, one of the defendants, who testified, inter alia, that some four or five days prior to the date of the execution upon which the sheriff sold the lands in question to Robinson, he, witness, called at the oflice of Robinson, who was then attorney for the plaintiff in the judgment upon which the execution was afterward issued; and in a conversation relative to the payment of the judgment, Robinson inquired of witness whether there were any liens on said lands. When witness replied, that there was a mortgage executed by Banks to the Sinking Eund, and that Banks held two notes, being the same described in the complaint, against William and John Mendenhall, which were given by them to him for a part of the purchase money of the lands. The defendants then asked the witness whether he did not, on the day the lands were sold by the sheriff, at the Court-house, state in the presence of the sheriff, Samuel Lamb, and Adam Clark, that there were no liens on the lands, save a mortgage to the Sinking Eund for |150? To this he answered that he had not so stated; but the question having been again put, in the same form, he replied that he had no recollection of having made any such statement. And the defendants thereupon produced the said Lamb and Clark, and by them proposed to prove that the witness did, at the time, place, and in the presence mentioned in the interrogatory, make the aforesaid statement. But the Court refused to hear the proof, and the defendants excepted. The proposed testimony was evidently intended to' impeach the credit of the witness, by proving that he had made statements out of Court, on the same subject, contrary to his statement on oath, at the trial. There must, however, be a previous inquiry of the witness as to such alleged statements, and if he neither admits nor denies them, but, as in this instance, simply states “ that he had no recollection of having made them,” such contradictory evidence has been
The judgment is affirmed, with costs.