Snyder v. Bunnell

64 Ind. 403 | Ind. | 1878

Biddle, J.

Complaint by the appellee, who was the administrator of George W. Spencer, deceased, against the appellant, to obtain judgment on certain notes secured by a mortgage on the Monticello Woollen Mills, fixtures and stock, executed by the appellant to the deceased in his lifetime, and to foreclose the mortgage.

“ One of the notes secured was executed by Snyder, the mortgagor, to Spencer, the mortgagee; the other was executed by George W. Spencer, G. S. Kendall and W. R. Kendall, payable to Maria Batt, and assigned by her to Ira Kingsbury, aud by him to the Lafayette Savings Bank.

These are the substantial averments in the complaint. The mortgage was made an exhibit, and the proper breaches alleged.

The Lafayette Savings Bank filed a cross complaint, making Snyder the defendant therein.

Issues were formed on the original complaint, and a trial by the court had, which resulted in a finding and judgment against Snyder, upon the note executed by him to Spencer.

Snyder demurred to the cross complaint, filed by the Lafayette Savings Bank against him, for the alleged want of facts. His demurrer was overruled, but it does not appear that he excepted to the ruling. He has assigned as error, however, in this court, the insufficiency of the complaint, which presents the question of its sufficiency for our consideration. After the demurrer of Snyder to the cross complaint was overruled, he was, at the February term of the court, 1877, ruled to answer the cross complaint.

At the same term, the verme, as between the bank and Snyder, was changed, by the agreement of the parties, to the "White Circuit Court. It does not appear which party applied for the change. The change was not perfected by either party. At the April term, 1877, .the rule against Snyder to answer — not having been complied .with — was made absolute ; whereupon the court tried the case, as upon default, and found in favor of the bank, and rendered judgment accordingly. To this proceeding no objections were made by Snyder, and no exceptions reserved.

The questions presented by the assignments of error in this court, and which are discussed by the appellant in his brief, are:

1. The insufficiency of the complaint;

2. The insufficiency of the cross complaint; and,

3. The irregularity of the trial on the cross complaint.

1. The grounds taken against the sufficiency of the complaint are, that the alleged mortgage does not appear upon its face to be a mortgage, and that there is no averment that it was ever recorded.

The language of the mortgage is as follows :

“This Indenture Witnesseth: That Henry Snyder, of Montieello, county of White, and State of Indiana, for the sum of three thousand three hundred and eighty-five dollars, has mortgaged and assigned to George W. Spencer, of said county and State, the Monticello Woollen Mills, situated on the west bank of the Tippecanoe river, in said town of Monticello, consisting of the building, all the machinery therein,” etc., and then describes the notes and states the usual conditions upon non-payment.

It appears to us very clear that such an instrument is a mortgage.

An averment that the mortgage was recorded was not necessary. The suit is between the original parties, Bunnell, the administrator of the mortgagee, and Snyder, the mort.gagor.

2. The same objections are made to the sufficiency of the cross complaint, and may be answered in the same way. The payment of the note held by the hank, of which the mortgagee .was a maker, was secured by the mortgage to .the mortgagee. The bank, being the holder of this note, stood, in equity, in the place of the mortgagee. See The South Side Planing Mill Association v. The Cutler & Savidge Lumber Company, post, p. 560. It was therefore no more necessary that the mortgage should be recorded, as against the bank, than it was as against the mortgagee.

3. We see no irregularity in the trial on the cross complaint in the Carroll Circuit Court. Both parties were in court. The appellant was under a rule to answer the cross complaint, before the change of venue was granted by agreement. Neither party perfected the change of venue; the case and the parties, therefore, remained in the Carroll Circuit Court. When the appellant failed to comply with the rule against him to answer, lie was liable to judgment as by default. Risher v. Morgan, 56 Ind. 172.

The judgment is affirmed, at the costs of the appellant.