55 Ind. App. 617 | Ind. Ct. App. | 1914
Action by appellee against appellant and her husband Charles Taylor, on a promissory note signed by her alone, payable to appellee, and to foreclose a mortgage executed by her and her husband on real estate which she owned. There were four paragraphs of answer to the complaint, the first a general denial, the other three setting up that appellant was a married woman when the note was executed, the wife of defendant Charles Taylor, that she signed the note and mortgage as surety for her husband, and received no part of the consideration. A demurrer to the secdnd paragraph of answer was sustained, demurrers to the third and fourth were overruled. There were two paragraphs of reply, the first alleging facts showing appellant estopped to set up suretyship as a defense, the second a general denial. Demurrer to the first paragraph of reply was overruled. There was trial by the court, with special findings of fact. Judgment was rendered for the appellee for the amount of the note, interest and attorney fees, and the judgment was against both defendants for foreclosure of the mortgage.
The second paragraph of reply is in the following words: “The plaintiff, Jacob Griner, for reply to the separate answer of Rebecca J. Taylor, alleges that at the time of the execution of the note and mortgage mentioned in this action, and before this plaintiff had paid the money over on the same, this defendant Rebecca J. Taylor, by her certain written statement, made a part hereof, marked exhibit A, which she caused to be delivered to this plaintiff in which she stated and represented to plaintiff that the money for which she had signed said note and mortgage, was for her own use and benefit, and for this plaintiff to pay said money to her husband, Charles Taylor, for her. That said plaintiff relying upon said statements and believing them to be true and having no way of finding out the truth of said statements, was induced thereby to and did pay said money to her husband, Charles Taylor, for her. Plaintiff avers that had he believed that said money was for the use of the said Charles Taylor, he would not have made said loan. Wherefore, plaintiff prays that this defendant, Rebecca J. Taylor, be estopped from asserting that she is surety, and for cost of this action and all other proper relief.”
“Exhibit A. Nashville, Ind. Oct. 21, 1895.
I Rebecca J. Taylor, having this day signed a note, the amount of the same being two hundred dollars, payable twelve months after date, payable to Jacob Griner (Jr.) and also a mortgage to the said Jacob Griner to secure the payment of the above named note, described in mortgage — I Rebecca J. Taylor, further order the*622 payment of the two hundred dollars to be paid to Charles Taylor, my husband, for my own use and benefit. Signed in the presence of this witness. Rebecca J. Taylor. ’ ’
• It is urged that this reply is bad because it fails to show whether she signed the note and mortgage as principal or surety, or knew or understood in what capacity she signed it, whether as principal or surety, or that appellee made any efforts to ascertain in what capacity she signed.
be held to constructive knowledge of the facts, and if the other party was negligent or corrupt in not seeking the truth, he is held not to be ignorant of the truth. Wright v. Fox (1914), 56 Ind. App. -, 103 N. E. 442. The present reply contains facts which show all the above elements, except the second. The answers to which it is addressed aver that she signed the note and mortgage as surety, and if these answers are true, her representations must have been false, and made with knowledge of their falsity. The note itself, signed by her alone, was at least a ■prima facie representation that she signed as principal, and that the debt was her debt. Field v. Noblett, supra, 359. A married woman may be estopped from setting up surety-ship as a defense to her contracts. See cases cited above. ¥e think the reply was "good.
Judgment affirmed.
Note.—Reported in 104 N. E. 607. As to equitable estoppel, see 134 Am. St. 172. See, also, under (1) 21 Cyc. 1563, 1566; (2) 31 Cyc. 207; (3) 31 Cyc. 358; (4) 31 Cyc. 675; (5) 16 Cyc. 726; (6) 16 Cyc. 734, 738; (7) 21 Cyc. 1345, 1566; (8) 21 Cyc. 1346.