68 Ind. 432 | Ind. | 1879
The complaint in this case, filed by the appellant against the appellees herein, alleges that on February 15th, 1872, Frederick Ostermeyer and Charles Dammeyer executed their promissory note to Henry Tebbe for the sum of one thousand dollars, payable on the 1st of July, 1876, being given for a part of the purchase-money, for certain real estate described, situate in the comity of Marion ; and that Ostermeyer and Dammeyer, at the same, time, executed to Tebbe a mortgage on the property to secure the payment of that, and some other notes, the others, having been paid, and the mortgage was duly recorded that on August 14th, 1876, Tebbe sold and transferred the. note, by parol, to Dammeyer, one of the makers, and that on January 11th, 1877, Dammeyer sold and transferred the note to the plaintiff, by parol; that Tebbe transferred, the mortgage to Dammeyer, by written assignment on the. record of the mortgage, and that Dammeyer, in like manner, transferred the same to the plaintiff'; that the note remains due and unpaid; that, after the execution of the' mortgage, Ostermeyer and Dammeyer, with their wives,, executed a conveyance of the mortgaged premises to Nich-
On June 17th, 1873, Ruckle, Pierson and his wife, and Dickson and his wife conveyed the property, by deed duly recorded, to Cuvier B. Higgins and Andrew Smith, who took the property subject to the mortgage, and, as part consideration, assumed, by the terms of the deed, the payment, among others, of the note in suit.
On July 21st, 1873, Higgins and his wife conveyed, by deed duly recorded, the undivided half of the property to Reuben D. Logan, who took it subject to the mortgage, and assumed, by the terms of the deed, to pay one-half of the note in suit, as well as one-half of those which have .been paid. Prayer for judgment against the parties thus assuming to pay the note, and for the foreclosure of the mortgage.
Logan and wife pleaded matter intended to show that the note had been paid and satisfied; also a direct answer of payment; and, further, matter intended to show that the plaintiff'was not, but that one Andrew Smith was, the real party in interest. We deem it unnecessary, for the purposes of the case, to examine minutely and pass upon the answers so filed.
The cause was-submitted to the court for trial, which resulted in a finding for the defendants, and judgment over a motion by the plaintiff’ for a new trial.
. We are satisfied that the finding below was wrong. Long before the note was due, or had been transferred by Tebbe, the payee, to Dammeyer, one of the makers, Ostermeyer and Dammeyer had sold their equity of redemption in the land, and had the assumption of their grantees to
The plaintiff’ introduced in evidence the assignment of the mortgage from Tebbe to Dammeyer, and that from Dammeyer to the plaintiff’, as alleged in the complaint. Dammeyer testified as a witness in the cause, and said, among other things, as follows :
“ The way I came to get the note was this : Tebbe came to me and wanted the money, and he and I went to Dr. Buck to see about it. Tebbe assigned the mortgage to me when I paid the money; he sold the note and mortgage to me; I paid my own money for the note and mortgage, and I transferred the note and mortgage to Mrs. Smith.”
In Howe v. Woodruff, 12 Ind. 214, 218, it was said, quoting from a case in Maine:
“ ‘ It is, in each case, a question of intention whether or not there is an extinguishment of the charge upon the estate. If, at the time the mortgage is taken in, the intention to extinguish appears, that is decisive. If it does not, equity presum.es it to be outstanding or extinguished, as the interests of the party may require.’ ”
The judgment is reversed, with costs, and the cause remanded for a new trial.