11 Ind. 268 | Ind. | 1858
Action by the appellee against the appellant, on a bond.
The complaint avers that, on the 23d of August, 1850, the defendant made his bond, payable to Charles Denison, who was then the president of said bank, in the penalty of 12,168 dollars, 88 cents, conditioned for the payment of 6,084 dollars, 44 cents, payable in five equal annual install
The defendant answered—
1. By a general denial.
2. That before the date of the bond, viz., on the 1st of January, 1850, he purchased of Nathaniel Weed, then the president of said bank, certain real estate (described in the answer), for the sum of 10,000 dollars; that afterwards, on the 20th of April, 1850, the said Weed and wife executed to him a deed therefor, but the same was not delivered until the said 23d of August, 1850; that before the date of the bond sued on, Weed had ceased to be the president of the bank, and Denison had become such president; that on said 23d of August, 1850, Denison by his contract of that date, agreed to convey to the defendant certain other real estate, (described in the answer, on demand, and by the contract agreed and admitted, that the defendant had secured the purchase-money thereof, viz., 600 dollars, by the bond now sued on; that the deed for the lands first mentioned was on that day deliverd to him by said Denison, and that the bond sued on was executed to secure the then unpaid purchase-money for the lands described in the deed, and for those described in said contract, and for no other consideration whatever; that.the defendant demanded a deed for the land described in the contract, to-wit, on the first day of January, 1850, but that Denison has wholly failed to make the same; that said Weed did, and Denison does, hold the title to said' lands for the benefit of, and in trust for the said plaintiff, and not otherwise; that they derive their title through one George W. Allen, who purchased the same from Arthur Bronson, and on the 3d of July, 1840, mortgaged the same to Bronson; that in October, 1846, the mortgage was foreclosed in the Laporte Circuit Court, and that the decree of foreclosure is still in full force and unpaid; that at the time of his
To this paragraph of the answer, the plaintiff demurred, assigning for cause that the same does not state facts sufficient to constitute a defense.
The demurrer was sustained, and the defendant excepted.
Denison was made a defendant in the first instance, but process being returned not found as to him, the plaintiff elected to proceed against Rose alone.
The cause was submitted to the Court for trial on the issue joined, and there was a finding and judgment for the plaintiff, for 1,384 dollars, 61 cents.
Two errors are assigned—
1. In sustaining the demurrer to the second paragraph of the answer; and,
2. That there was no sufficient finding to authorize the judgment.
The amount for which the mortgage set up in the answer was given, is not specified, nor is the amount of the decree of foreclostíre; but in these respects the answer is left blank. Nor is there anything in the answer from which we can infer the amount. It is said by counsel for appellant, in his brief, that it was agreed that the blanks might be filled up at any time, and this statement seems to be acquiesced in by counsel for the appellee. But the blanks have not been filled up, and there is nothing in the record from which we can jtrdge of the extent of the mortgage incumbrance. In this state of the record, we can only presume that the mortgage was for a nominal sum.
This disposes of that branch of the defense resting upon
Several other objections are made to the paragraph under consideration; but we deem it unnecessary to notice them, as the above was sufficient to justify the ruling of the Court.
The other error assigned is, in reference to the finding of the Court. The Court found that there was due from the defendant, Bose, to the plaintiff, on said land, the sum of 1,384 dollars, 61 cents. This we regard as a sufficient finding. On the supposition that the word “land” is not a clerical error for bond, it may be stricken out as surplus-age, and the finding will still be ample.
We are of opinion that the Court committed no error in its rulings, and that the judgment should be affirmed.
Per Curiam. — The judgment is affirmed, with 3 per cent, damages and costs.