62 Ind. 511 | Ind. | 1878
This was a proceeding by John II. Taylor and Serena H. Taylor, his wife, against Joseph Watkins, under section 99 of the code, 2 R. S. 1876, p. 82, to set aside a judgment of foreclosure rendered against them upon default.
The complaint, which was verified by affidavit, was, in substance:
That, on the 5th day of June, 1874, the said John H. Taylor executed and delivered to the defendant, Watkins, his promissory note, promising to pay the said defendant the sum of twelve hundred dollars, twelve months after date, without relief from valuation or appraisement laws, at ten per cent, interest and reasonable fees for the plaintiffs attorney, if suit should be instituted on said note; that, to secure the payment of said note, the said John II. Taylor, together with the said Serena H. Taylor, who-was then and has since continued to be his wife, executed to the defendant a mortgage on some small tracts of land, containing in all about twenty-seven acres, giving a particular description of each tract; that, on the
That said steam mill always had been personal property, .and as such treated by the said John H. Taylor and the .former owners thereof, and had been moved from time to .time, and set down at different places, and, when it was set down upon the lands mortgaged to the defendant, it was the intention of the said John H. Taylor to move the same .to some other place, when the timber should become scarce .and a better place could be found.
That said defendant, when he brought suit on the note and mortgage herein above referred to, alleged in his .-complaint, that said mill was covered by and included in -said mortgage, and procured the judgment of foreclosure .to specifically embrace said mill, so that it was sold with the real estate on which it was standing; that the plaintiffs had a good defence to the action on said mortgage, in this, that said mill was not included in said mortgage when it was executed, nor was it understood to have' been so included, between the parties to said mortgage ; that, by the terms of such mortgage, said mill was not covered by it; that the plaintiffs had no knowledge that it was claimed .that the mill was included in the mortgage, or that it had been included specifically in the defendant’s judgment of foreclosure, until near the 20th day of March, 1876 ; that it was on or about the 28th day of March, 1876, before they had an opportunity, suitable to the said John H. Taylor’s condition of health, of consulting counsel and ascertaining the precise terms of said judgment of foreclosure.
.Wherefore the plaintiffs demanded that their default, and the judgment of foreclosure, and the sale of the real estate made thereon, be set aside, that they might be permitted to make defence to the action on said mortgage, .and that they should have all other proper relief.
The'defendant demurred to the complaint, and his demurrer'was sustained, and judgment was' rendered in his-favor upon his demurrer.
The appellee insists that the facts alleged in. the complaint show the mill to have been attached to and a part of the real estate, when the judgment of foreclosure was taken, and that hence no error was committed by the inclusion of the mill in that judgment; that the averment, that the mill was attached to the real estate only so much as was necessary to steady the machinery, was, in effect,, an admission that it had become, and was in fact, appurtenant to and a part of said real estate.
We think this latter averment, when taken in connection with the other averments in the complaint, will not bear the construction placed upon it by the appellee. We are of the opinion, that, upon the authority of the case of Pea v. Pea, 35 Ind. 387, the allegations of the complaint show the mill in question to have been personal property, and not subject to the mortgage. See, also, Young v. Baxter, 55 Ind. 188.
We are further of the opinion, that the complaint contained facts sufficient to put the appellee upon his defence, and was, therefore, good upon demurrer. Harvey v. Wilson, 44 Ind. 231.
With this view of the case, the judgment will have to-be reversed.
The judgment is reversed, at the costs of the appellee, and the cause remanded for further proceedings.