166 Ind. 644 | Ind. | 1906
—This is an appeal from the judgment of the first division of the Appellate Court, affirming a judgment of the Wabash Circuit Court. It appears that appellee commenced this action, against appellants in the Huntington Circuit Court to recover on a promissory note and for the foreclosure of a mortgage executed to secure the payment thereof. The case was venued to the Wabash Circuit Court.
Appellants filed a joint answer to the complaint. Haney J. Scott also filed a separate answer, alleging therein that at the time she executed the note and mortgage she was a married woman and had executed the same as a surety of her husband, her codefendant in the action; that the note was executed by her. to the plaintiff for borrowed money which was used and applied in paying the separate debts of her said husband, and that no part thereof was expended or used for her benefit, etc. Appellee replied by the general denial to the joint answer of appellants, and to the separate answer of Haney J. Scott she replied affirmative matter in avoidance of said answer. To this reply appellants severally demurred, assigning as the only ground of demurrer that the reply did not state facts sufficient to constitute a defense to the defendants’ answer. This demurrer was overruled, to which defendants excepted, and this is the ruling upon which the second assignment of error is predicated. Upon the issues joined between the parties there was a trial by the court and a special finding of facts and conclusions of law thereon in favor of appellee. Over appellants’ motion for a new trial, assigning therein that the special findings are not sustained by sufficient evidence and are contrary to law, a judgment was rendered in favor of appellee, against both appellants, for $6,144.16, principal, interest and attorneys’ fees, and a foreclosure of the mortgage was decreed. Erom
practice or procedure authorizing such motions, hence, the court did not err in denying each and all of them. Tewksbury v. Howard (1894), 138 Ind. 103; Windfall Nat. Gas, etc., Co. v. Terwilliger (1899), 152 Ind. 364; Wolverton v. Wolverton (1904), 163 Ind. 26; Royse v. Bourne (1897), 149 Ind. 187.
The fifth and last error assigned is the overruling of appellants’ motion for a new trial. The motion in''question assigns the following reasons: (1) The special finding of facts is not 'sustained hy sufficient evidence; (2) the special finding of facts is contrary to law; (3) special
Appellants’ theory is that Nancy J. Scott executed the note and mortgage in suit as the surety of her husband, coáppellant herein, in violation of the statute which forbids a married woman from entering into any contract of suretyship. But this theory is wholly unsupported by the facts, for they fully establish that she was the principal in the obligations in suit. The evidence in the case proves that she herself borrowed from appellee the money which constitutes the consideration of the note in question, and that it was applied and used by hex*, or under her dix’ections, to the benefit of her separate property or estate.
It is shown that Joseph Z. Scott, husband of appellant at the time of the execution of the obligatioxxs herein involved, owned the mortgaged premises from the year 1865 down to the time at which he conveyed the same to his wife, Nancy J., as hereinafter shown. During the period of his ownership he and his said wife mortgaged the same to one Kaufman, to secure an indebtedness contracted by the husband to the amount, in round numbers, of $2,200. In
Under the agreement and condition the money borrowed from appellee by Mrs. Scott was to be used and applied in the payment of existing liens against the land, and after she obtained title thereto she and her husband were to execute a mortgage thereon to appellee to secure the payment of the money borrowed by Mrs. Scott. Appellants thereupon conveyed the lands to said Powers, and he in return conveyed them absolutely to appellant Mrs. Scott. Thereupon she and her husband executed a note to appellee for the money borrowed by the former and also a mortgage on the premises to secure the payment thereof. It is shown that Mrs. Scott, upon receiving the money which she borrowed from appellee, actually caused the same to be used and applied in the payment of the liens existing on the lands conveyed to her by her husband and thereby was enabled' to and did become the absolute owner of the premises, free from all said liens and encumbrances. After she became the owner of the lands in question she appears to have allowed the taxes to go unpaid and to accumulate thereon, and at her request, or solicitation, appellee, under
To recapitulate: she, by the use and means of the money which she obtained from appellee, was thereby enabled to acquire a good title to and become the owner of the lands, free from all the existing liens or encumbrances. In fact, under the circumstances, she, in effect at least, may be said to have purchased the equity of redemption which her husband owned and held in and to the premises in controversy, and used and applied the money which she borrowed from appellee in redeeming them from the mortgage and judgment liens thereon. She never was the owner of the property until she obtained the conveyance thereof from her husband through Powers, who served as a mere conduit for that purpose. Consequently there is no merit in the contention of her counsel that in the transaction she is shown to have evaded, by a circuitous route, the statute forbidding a married woman’s becoming a surety. She still holds the premises, free from the original encumbrances. That, under the facts, the money which she borrowed from appellee must be held to have inured or conduced to the benefit of her separate property cannot be successfully questioned. Therefore she must be regarded and held as the principal debtor in the note in suit, and, as such, is liable thereon. Kedy v. Kramer (1891), 129 Ind. 478; Cook v. Buhrlage (1902), 159 Ind. 162; Guy v. Liberenz (1903), 160 Ind. 524.