27 Ind. App. 333 | Ind. Ct. App. | 1901
This was an action upon a note and to foreclose a mortgage given by appellant, Margaret Till, to appellee, Sarah Collier, to secure the debt. The note was upon its face the separate note of appellant. The mortgage was signed by appellant and her husband. The name of the husband does not appear in the body of the mortgage; this omission, the complaint avers, was by the mutual mistake of both parties. The prayer of the complaint includes a demand that this mistake be corrected and the mortgage reformed and foreclosed.
Appellant with her husband, who was a party in the trial court, jointly answered, pleading appellant’s coverture and that the note and mortgage was given to secure the debt of her husband and son and that she received no part of the money so obtained. Appellant and husband also filed their joint cross-complaint against appellee, alleging the identical facts stated in the answer, upon which facts they asked that the mortgage be canceled. Neither the answer or cross-complaint- was tested by demurrer. Appellee answered appellant’s cross-complaint in two paragraphs and replied to appellant’s answer in two paragraphs. The first paragraph of both the answer* and reply was a general denial; the second paragraph of both the answer and reply stated the same facts, which were substantially as follows: That at the time the note and mortgage was executed, appellee was
The trial court overruled appellant’s demurrer to appellee’s second paragraph of reply and to the second paragraph of answer to the cross-complaint. The court by request of the parties made a special finding of facts and stated conclusions of law thereon. Judgment was rendered in favor of appellee for the amount of the note and for a foreclosure of the mortgage and sale of the real estate.
Appellant has assigned as error, (1) error of the court in overruling appellant’s demurrer to the second paragraph of answer to the cross-complaint; (2) error of the court in overruling appellant’s demurrer to the second paragraph of reply; (3) error of the court in its conclusions of law upon the facts found.
Counsel for appellant waived the first two specifications of the assignment of errors by a failure to discuss them. Counsel in their brief say: “The only question necessary to consider is whether the special finding of facts warranted the conclusions of law of the court below.” The finding of facts and conclusions of law, omitting the copies of the note and mortgage which are found therein, are as follows: (1) “That the defendant Margaret Till is and at all tiiúes herein named was the owner in fee of lot 137 in Hornberger’s 1st addition to the town of Waterloo, DeKalb county, Indiana, and that during all said time she was a married woman, the wife of her codefendant. (2) That on the 6th day of January, 1894, the defendant, Margaret Till, borrowed $250 of one Mary A. Fisk, and executed her note therefor
The court concludes the law upon said facts to be as follows: (1) That the said mortgage should be reformed by the insertion of the name of Richard Till in the body thereof; (2) that the plaintiff should recover of the defendant Margaret Till $287.82 and the costs of this action and that said mortgage as reformed is a first and valid lien and should be foreclosed and the premises ‘ therein described sold. That the proceeds should be applied to pay the costs and second plaintiff said note, and third, the residue to' Margaret Till; (3) that the defendants take nothing on the cross-complaint. E. D. Hartman, Judge.”
It seems to us that the facts found clearly establish appellee’s right to recover. Hnder our law a married woman is bound by an estoppel in pais the same as if she were un
It is settled law that where money is borrowed by. the wife, or by the husband and wife, or by either of them, for the purpose of discharging liens on the wife’s separate property, a mortgage executed to secure the repayment of the money so borrowed is a valid encumbrance upon the property. Noland v. State, ex rel., 115 Ind. 529; Cochran v. Benton, 126 Ind. 58; Johnson v. Jouchert, 124 Ind. 105, 8 L. R. A. 795.
But going further, coverture is a personal defense. The Fisk mortgage was upon its face a valid lien. Appellant so treated it, and took the money she iirocured from appellee and discharged the debt. Appellant can not now be permitted to defend against appellee’s claim by averring that she used the money to discharge a lien which was valid upon its face and which could only be defeated by affirmative action upon her part.
The judgment is affirmed.