119 Ind. 69 | Ind. | 1889
This was a suit to foreclose a mortgage executed by Matthew and Mary E. Arbuckle, on the 6th day of May, 1882, to Thomas C. Day, and afterwards assigned by the latter to the Security Company, of Hartford, Connecticut. The mortgage was adjudged invalid upon the ground that the real estate mortgaged was owned by the mortgagors, Arbuckle and wife, as tenants by the entireties that the debt, to secure which the mortgage was given, was the debt of Matthew Arbuckle, the husband, and that Mary E. Arbuckle, wife of the former, received no part of the consideration for which the mortgage was executed. It became a question, under the pleadings, whether or not the mortgagors were estopped to assert that the mortgage debt had not been contracted for the benefit of their joint property.
The only material facts found by the court are, that the land was owned as above stated, and that Matthew Arbuckle made an application to the mortgagee for a loan of $1,000, but that the latter refused to make the loan until Mary E. Arbuckle joined in the application, when the loan was made to the husband and wife, both of whom signed the note and mortgage. Matthew Arbuckle drew the money from a bank upon a check drawn by the mortgagee, payable to both mortgagors.
It does not appear from the special finding what the money was borrowed for, and there is nothing in the findings to indicate how the money was used, except that it is recited that Matthew Arbuckle “ used it mainly in discharging his indebtedness, upon which his wife was security and that he “ recognized all the debts paid with the money as his individual debts, upon which his said wife was only surety.”
The foregoing can not, however, be accepted as the find
The mortgaged estate being the joint property of both, and the loan having been made on the joint application of both mortgagors, the burden is upon them to make it appear that the consideration of the notes was not obtained and used for the benefit of the joint estate. This is not the case of a married woman mortgaging her separate estate to secure a debt which appears to be the obligation of herself and another. This is the case of the owners of a joint estate who joined in a mortgage thereon to secure the apparent obligation of both, and it must affirmatively appear that the debt was not for their joint benefit.
Upon these material and controlling facts the special findings of the court are either entirely silent, or they are so uncertain and ambiguous as to leave the court wholly without any facts upon which to rest its judgment.
That the money received was used mainly to pay off debts which the husband recognized as his debts, amounts to no finding at all. Whether the debts paid off were the debts of the husband, and whether Mrs. Arbuckle was merely surety for him, depends upon facts, and not upon the mental attitude of the parties.
It should be observed that the same uncertainty which characterizes the special finding of the court pervades the pleadings. General statements to the effect that the defendant Mary E. Arbuckle executed the note and mortgage as surety for her husband, are not a sufficient statement of facts. Whether she was surety or not depends upon the purpose for which the money was borrowed, and to which it was applied.
The judgment is reversed, with costs.
