143 Ind. 211 | Ind. | 1896
From the complaint it appears that David Moreland died the owner in fee simple of certain described land in Grant county, leaving his widow Mary H. Moreland and his children, being certain of the appellants, and others; that these children and heirs afterwards met with said widow and all joined in a warranty deed for the land to the appellee Smith; that. all received their consideration in money for said deed, except the widow, who received a mortgage. It appears that an agreement was made between the widow and Smith, who was her son-in-law, according to which she
The prayer of the complaint was that appellants, as plaintiffs and heirs to the widow’s one-third interest in said land, might be allowed to redeem under said mortgage given to her by the appellee Smith from said other mortgages, judgments and foreclosure sales.
The appellees answered this complaint by a general denial, and also by a special paragraph, in which they admit much of what is alleged in the complaint, but aver that, on the death of the widow, an administrator named was appointed for her estate; that said administrator brought suit under her said mortgage; that
To this paragraph of answer a reply was filed in general denial, and the cause was submitted to the court for trial. The court found for the appellees and entered judgment for costs in their favor.
The assignment of errors is as follows:
“1. The answer of defendants does not state facts sufficient to constitute a cause of defense to the action by plaintiffs, in either paragraph of complaint.
“2. The court erred in the finding of facts in said cause and the conclusions of law thereon.
“3. The court erred in refusing the motion for a new trial on the former trial of this cause.”
We are of opinion that no question arises under any of these assignments.
There was no demurrer to the answer, and its sufficiency cannot therefore be considered on appeal. The rule according to which the sufficiency of a complaint may be considered for the first time on appeal does not apply to an answer. Section 346, R. S. 1894 (section 343, R. S. 1881); Bledsoe v. Rader, 30 Ind. 354; Crowder v. Reed, 80 Ind. 1; Chicago, etc., R. R. Co. v. Modesitt, 124 Ind. 212; Elliott App. Proced., sections 476, 480.
■ As to the second assignment, it is sufficient to say that the record discloses no special finding of facts or conclusions of law. There is a general finding only, and judgment for the appellees.
As to the third assignment, the record shows no “former trial of this cause;” and, even if it did, an erroneous “refusal of a motion,” or the overruling of a
We have, however, examined the evidence in the record, and find that it fully sustains the averments of the special answer. That answer is a complete bar to the action outlined in the complaint. Appellants’ sole claim to recover was under the mortgage given to the widow to secure her support out of the farm sold to the appellee Smith. The answer, however, avers, and the evidence shows, that the administrator of the widow’s estate foreclosed this mortgage and collected the judgment rendered thereon. The widow’s estate, consequently, having received the full amount found due her under her mortgage, and that mortgage having been canceled of record, there is nothing left under which the appellants, as her heirs, can redeem from the other mortgages and judgments, on foreclosure of which the land was sold to the appellee Thorn.
The judgment is affirmed.