63 Ind. 44 | Ind. | 1878
Lead Opinion
Jacob Eldridge and Esther Eldridge, his wife, in their complaint against John Scarry and Rebecca Scarry, his wife, aver, that, on the 12th day of February, 1874, the plaintiffs purchased of Edward Earl and Navini Earl lot number one, in block ten, in the town of Jamestown, in said county, for which they paid two thousand dollars, and took the conveyance in the name of Esther M. Eldridge; that there was an incumbrance on said lot, secured by a mortgage, dated August 20th, 1'873, executed by R. L. Whittington and Mattie E. Whittington, his wife, then the owners and in possession thereof, to William H. Dickerson, duly acknowledged, delivered and recorded, to secure the payment of a promissory note for five hundred dollars, with interest, etc.; that, to indemnify the plaintiffs against said mortgage, the said Edward Earl and Navini, his wife, executed, acknowledged and delivered to the said Esther M. Eldridge, “ for the use of the plaintiffs,” a mortgage on thirty feet off of the east side of lot No. two, in block No. seven, in said town of Jamestown, which was duly recorded, and on the same day conveyed said lot No. one to the mortgagees — the present plaintiffs ; that, after said indemnifying mortgage was so executed by Earl and wife to the plaintiffs, the said Earl and wife, on the 20th day of March, 1874, conveyed the premises so mortgaged to Adam R. Miller, by deed of warranty, subject to the indemnifying mortgage executed to secure the payment of the note for five hundred dollars, which was a mortgage incumbrance on said lot one, in block ten, and
Prayer for judgment against John Scarry for one thousand dollars, that the said mortgage on said lot number two be foreclosed, the premises sold to pay the same, and that the balance, if any remain, be levied of the goods and chattels of said John Scarry.- Wherefore, etc.
A demurrer to the complaint, alleging the insufficiency of the facts therein stated to constitute a cause of action, was overruled, and exceptions taken.
A demurrer to the complaint was then filed, alleging a defect of parties — that Edward Earl and Adam R. Miller are necessary defendants. This demurrer was also overruled, and exceptions reserved.
Answer, general denial; trial by the court; finding for the appellees, against Scarry, that the mortgage be foreclosed and premises sold to pay the judgment, etc.
Judgment upon the finding.
The objection taken to the complaint on the demurrei for want of sufficient facts is, that it does not aver when or where the mortgage sought to be foreclosed was recorded. In support of this objection, the appellants cite the case of Faulkner v. Overturf, 49 Ind. 265 ; but- we do not think this case bears them out. It is true, that, where a mortgage is to be enforced against a subsequent grantee of the land, in good faith, for a valuable consideration, without notice, then the complaint should show that the mortgage was recorded in the proper county and within the proper time; but, in a suit by the mortgagee against the- mortgagor, or against a subsequent grantee with notice, no averment that the mortgage was recorded is necessary.
In the present case, Scarry stipulated, in the deed he received from Miller, to pay the mortgage sought to be foreclosed. In such a case, it is immaterial whether the mortgage was ever recorded or not. But the appellants say that this stipulation was to pay off a mortgage to Jacob Eldridge, while the exhibit shows that the mortgage was executed to Esther M. Eldridge. It is averred in the complaint, however, that the purchase of the lot to be protected by the-mortgage was made by Jacob Eldridge and Esther, his wife, and the conveyance made to Esther, for the use of the appellees ; arnd subsequent averments in the complaint sufficiently show that the mortgage, which Scarry agreed to pay to protect Miller, was the same one which Miller agreed to pay to protect Earl. We think, therefore, that the mortgage which is sought to be foreclosed is clearly identified as the mortgage which Scarry agreed to pay, and, having stipulated to pay it, he certainly had notice of it ;l hence itjsnot necessary to aver that it had been recorded.
It may be that the appellees had a remedy against Earl and against Miller; but it is very certain, we think, that they have shown a cause of action against Scarry, independent of Earl or Miller. It appears to us, that the complaint is sufficient. Nothing is sought to be recovered in this action against either Earl or Miller, nor can their interests be unfavorably affected by the judgment.
At the trial, the appellees offered the deed of Miller and wife to Scarry in evidence; the appellants objected, on the ground that the delivery of the deed to Scarry had not been proved, and that the record of the deed was not competent eviden ie to preve the delivery. The objection was overruled, and properly, as to these grounds, and no other ground wras pointed out. There was no objection made on the ground of variance.
The appellants also objected to the introduction of the mortgage executed by "Whittington and wife — the incumbrance complained of — when it was offered in evidence to the court, upon the ground that the mortgage record did not show' a satisfaction of the mortgage, and that the same was incomplete,.irrelevant, and immaterial.
This objection was properly overruled. No objection was made upon the ground that it had not been recorded, nor that Scarry had no ¿notice of it; but the objection implies that it was recorded, and that Scarry had notice of it.
The objection was properly overruled. This deed was directly necessary to sustain the action: for, if the appellees had no title to the lot they had purchased from Earl, they would have no right to seek a foreclosure of a mortgage given to protect its title.
Jacob Eldridge, the husband of Esther, was offered as a witness at the trial. His testimony was objected to on the ground that he was the husband of his co-plaintiff, and that the mortgage sued on was executed to, and was the separate property of, his wife Esther.
The objection was overruled, and exception taken. The averment in the complaint is, that the lot to be protected by the mortgage to Esther was purchased by the witness and his wife, and that the mortgage was executed for their joint use; and, in his. testimony, he stated that he owned a half interest in the property. As to this half, he was a competent witness. The objection was, therefore, properly overruled. Haskit v. Elliott, 58 Ind. 493.
The deed from Earl to Miller, and the record of the foreclosure of the mortgage of Whittington and wife to Dickerson, were introduced as evidence, over the objections and exceptions of the appellants, but we can perceive no objections to their introduction; nor are we sure their, introduction, or either of them, was at all necessary to the case. The deed from Earl to Miller was no part of the ground of action against Scarry; and the appellants might have paid off the mortgage to Dickerson, without there having been any foreclosure of it, and still have held Scarry bound as the vendee of Miller, and upon his stipulation in the deed from Miller.
The t-ranscript in this case was amended by a nunc pro
The judgment is affirmed, at the costs of the appellants, with four per cent, damages.
Rehearing
On petition fob a eeheaeing
The counsel for appellants think that we are mistaken in supposing that apart of the amendment to the record made in return to a certiorari was not objected to below.
We have again looked carefully to the amendments, and do not think we are mistaken. The portion of the amendments to which the counsel objected ■ clos.es with these words: “And to this part of said order the defendants excepted at the time. All of which amendments and corrections, so ordered by the said court on said motion of plaintiffs, are made and set out fully above.” The record then proceeds : “And further, in obedience to the writ of certiorari from the Supreme Court,” etc. Then follows an amendment to the record- inserting the motion for a new trial and the causes assigned therefor, to which there is no trace of any exception taken at the time; and the entry just above this amendment, showing that the parts excepted to were “ set out fully above,” precludes what followed from being a part of what preceded. So reads the record, and so we must hold it to be.
Counsel for appellants further think that there is a material difference in the description of the lot, between “ Lot
There might he a difference between these two descriptions set out in a pleading in lime verba; but the averments in the complaint show that the mortgage sought to be foreclosed against Scarry is the same mortgage that Scarry in his deed from Miller stipulated to pay, as a part of the consideration for his purchase, and to hold Eldridge and Miller harmless therefrom. We do not see how it would be possible to foreclose the wrong mortgage under the averments and evidence in the case; at least we are fully convinced that the right mortgage was foreclosed on the right property, and that it is the same mortgage which Scarry stipulated to pay in the deed he received from Miller, and to save the appellees as well as Miller harmless therefrom.
Other questions made in the petition for a rehearing are fully considered in the original opinion, and we find no reason to change our views.
The petition is overruled.