141 Ind. 322 | Ind. | 1895
Allen Hobaugh, the ownerof certain lands, mortgaged the same to one Grantham, who assigned
The appellant’s mortgage was executed nearly nineteen years before that of the appellee, Bowen; it was executed twenty-two years before the appellant’s purchase of the land and twenty-nine years before the present suit was instituted. Neither the cross-complaint nor the answer alleged the time of the maturity of the note and mortgage so asserted by the appellant.
The ruling of the court can not be upheld upon the statute of limitations, though more than twenty years elapsed from the date of the claim involved to the bringing of this suit or the filing of the answer or cross-corn.
It will be noticed that we have said that the lapse of time from the date of the claim being regarded it is sufficient. We do not forget that ordinarily the period of limitation begins with the maturity of the obligation, but here, as we have shown, there is nothing disclosing the date of maturity. In such case the presumption arises that the obligation was payable upon demand. Kraft v. Thomas, Exr., 123 Ind. 513; 2 Am. and Eng. Ency. of Law, p. 327.
It is further insisted that by the meeting, in the appellant, of the legal and the equitable title, merger took place, and the legal title was held subject to the appellee Bowen’s mortgage and freed from the senior mortgage. It was alleged that the mortgage of the appellee was not satisfied, but was maintained for the purpose and with the intention of keeping it alive and protecting the legal claim against the appellee’s junior mortgage.
Appellee’s learned counsel concede that equity will interfere to prevent a merger when justice requires it, and when he who asks it has done equity and comes with clean hands.
They quote from Prof. Tiedeman’s work on Equity Jurisprudence, section 119, that: “While as a general rule the merger, which otherwise would prevail, at com
If we may presume that the mortgage of the appellee is a valid, subsisting lien, in the absence of a merger, and that it is enforcible, in the absence of the statute of limitations, and we know of no reason why we should not so presume, it would occur to us that no injury or wrong would result to the appellee Bowen to maintain the priority of the mortgage standing as a senior lien when he took his mortgage. We observe no reason why he should occupy a better position, with relation to his security, because the appellant has purchased the legal title than if it had been purchased by another or held by his mortgagor. It can be no hardship to require him to maintain the standing he voluntarily assumed, as a junior mortgagee.
The purchase of the legal title by the appellant did not soil her hands and by owning that title she is enabled to do no more than another could do, namely: subject her property to the payment of the appellee’s claim, after the satisfaction of the senior mortgage. By purchasing she has certainly committed no injustice that should operate to stay the interference of equity to protect her mortgage against a junior mortgage.
As we have said, regarding the appellant’s lien.as valid and enforceable, it would certainly subserve the ends of justice to keep it alive, unless the appellee intended to merge it. This we understand to be the test.
It is insisted also that the appellant lost her right to enforce her mortgage by her long delay and laches. She certainly suffered none from laches during the period of limitation, since the law gave her twenty years in which to maintain an action to foreclose her mortgage. As we have already seen we can not adjudge as a question of law arising upon the pleadings that the period of limitation has yet expired. There is no doubt that, as held in Long, Exr., v. Staus, 124 Ind. 84, and Garnier v. Renner, 51 Ind. 372, a jury may properly consider long delay in urging a claim as a circumstance tending to raise the presumption of payment. Here there are no other circumstances than delay and since the law may have authorized that delay, we can not hold the delay conclusive of payment. See Potter v. Smith, 36 Ind. 231; Harper v. Terry, 70 Ind. 264; Scherer v. Ingerman, Admx., 110 Ind. 428.
It is further suggested that a copy of the note should be exhibited, or an excuse alleged for not doing so. The alleged loss of the note by the appellant was a sufficient excuse for not filing a copy with her pleading. Douthit v. Mohr, 116 Ind. 482; Anderson, etc., Tp., v. Thompson, 92 Ind. 556; Blasingame v. Blasingame, 24 Ind. 86.
Finally, it is urged that the description in the appellant’s mortgage, and as alleged in her pleadings, was not sufficient to enable any particular tract of land to be located. It was as follows: “All that certain tract or parcel of land adjoining the lands of John Summerville on the east, Peter Speece on the south, and Hiram Allen on the north, being a portion of the north end of the upper half of the lower half of the upper section of Conner’s reservation, said to contain one hundred and fourteen acres, more or less.”
Appellant presents the following diagram and explanation of these three sections of Conner’s reservation :
Tract ACDF was the one owned by Gillam and Sidenbender jointly, and is embraced in appellant’s mortgage. Tract A B E B was the part set ofl to Gillam and the one described in appellant’s deed and intended to be described in appellee Bowen’s mortgage.
In Whittelsey v. Beall, 5 Blackf. 143, the description was of “that certain tract or parcel of land containing 300 acres, lying and being in the county of Knóx and State of Indiana, about four miles northeast of Vincennes, and adjoining lands of David McCord and others, being the same tract of land that was conveyed to said Isaac N. Whittelsey by Benjamin Tomlinson and John Ross, on the 25th day of May, 1837.”
It was there said: “The objection urged to the bill is, that the description of the land is too indefinite to authorize the court to make a decree ordering the sale of it. We think the objection well taken. We do not mean to say that the description is so vague as to make the deed inoperative. It may be sufficient to convey the land. That -point, however, is not before us. But we think the bill is defective in not so describing the land, that the officers of the court may know on what premises to enter to execute the order of the court.” See, also, Hannon v. Hilliard, 101 Ind. 310; Bayless v. Glenn, 72 Ind. 5; Nolte v. Libbert, Admr., 34 Ind. 163; White v. Hyatt, Exr., 40 Ind. 385; Struble v. Neighbert, 41 Ind. 344; Halstead v. Board, etc., 56 Ind. 363; Lewis v. Owen, 64 Ind. 446; Hammond v. Stoy, 85 Ind. 457. In Bay less v. Glenn, supra, is stated a distinction, not recognized in all of the cases, but which should be here observed, that is, where a good cause of action is stated independently of the mortgage, and those where no relief excepting that afforded by the mortgage is sought. Here the lien of the mortgage is the only right asserted as against the appellees, and no personal judgment was sought. If, therefore, the description pleaded was insufficient, as we
The judgment of the circuit court is affirmed.