65 Ind. App. 415 | Ind. Ct. App. | 1917
Appellee instituted this action to recover on a promissory note and to foreclose a mortgage given to secure the note, both instruments having been executed by appellants Christopher C. Trinkle and his wife, Alice Trinkle. Appellant Everett Harris was made a party for the sole reason that he was occupying a building on the real estate described in the mortgage as tenant of the Trinkles.
Alice Trinkle filed her answer-in two paragraphs, the substance of which is that at the time of the execution of the note and mortgage she was the wife of Christopher C. Trinkle; that she and her husband then were, and ever since have been, the owners of said real estate as tenants by the entireties; that no part of the consideration for the note and mortgage was paid to her in cash or by check or draft payable to her order; that no part of said consideration was for her separate use or for the betterment of her separate property or business, or for the joint use of herself and husband; that said note and mortgage were given for money borrowed by her husband, and that said money was paid over to him; and that she executed the note and mortgage as surety for her husband, and not otherwise.
To her answer the association filed a reply in three paragraphs, numbered 1, 2 and 5. The first is a general denial. The second paragraph is in the following words: “The plaintiff for a second and further para
“Affidavit
“ ‘State of Indiana, Montgomery County, SS:
“ ‘Christopher C. Trinkle and Alice Trinkle being duly sworn upon their oaths say they are over 21 years of age. That they are the owners of the real estate proposed to be mortgaged by them to the Ladoga Building Loan Fund and Savings Association, to secure a loan of $700.00 situate in Montgomery County, Indiana, described in their application for a loan hereto attached, dated March 14, 1912, and that they are in possession thereof. “ ‘Affiants further say that they have not conveyed said Real Estate or any part thereof. That they have not encumbered the same or any part thereof by mortgage, vendor’s lien, mechanic’s lien, lease or otherwise, except as hereinafter stated. That they have not become replevin bail. There are no judgments against them nor suits pending against them; that no j'udgment against them has been paid by surety or replevin bail. That the premises have not nor has any 'part thereof been sold upon any mortgage to the Congressional School Fund. That there is no unredeemed tax sale against the property or any part of it, nor sale*419 for street nor other municipal assessments. That the only encumbrance on the property is nothing.
“ ‘That the money obtained by said loan will be used to pay the purchase price of real estate conveyed to Christopher C. Trinkle and Alice Trinkle, his wife, as tenants by entirety. No part of said $700.00 will be used for the benefit of any other person except Alice C. Trinkle.
“ ‘That Christopher C. Trinkle and Alice Trinkle make this affidavit for the purpose of inducing the said Ladoga Building Loan Fund and Savings Association to make them a loan of $700.00.
“‘(Signed) Christopher C. Trinkle “ ‘Alice Trinkle.
“‘Subscribed and sworn to by Christopher C. Trinkle and Alice Trinkle before the undersigned John Harrigan, a. Notary Public in and . for said County and State, this 16th day of March, 1912. (SEAL) My Commission Expires April 7,1914.’ ”
“The plaintiff says that it had no knowledge of the use to which said loan was to be put; that it knew nothing of the circumstances and condition of said Alice Trinkle and her codefendant, Christopher C. Trinkle; that relying upon said representations and believing them to be true, and believing that the said Alice Trinkle and her codefendant, Christopher C. Trinkle, were procuring said loan for the purpose of paying the purchase price of said real estate described in the plaintiff’s complaint and that no part of said money was to be used for the benefit of her husband or any other person, but that the entire sum was to be used for the use and purpose set out in said affidavit, this plaintiff did make said loan to said Alice Trinkle and her codefendant, Christopher C. Trinkle, and took their mortgage and note therefor.”
The substance of the fifth paragraph is as follows: That the Trinkles filed with the association their joint application for a loan of $700; that said application
“That the money obtained by said loan will be .used to pay the purchase price of real estate conveyed to Christopher C. Trinkle and Alice Trinkle, his wife, as tenants by entirety. No part of said $700.00 will be used for the benefit of any other person except Alice Trinkle. That Christopher C. Trinkle and Alice Trinkle make this affidavit for the purpose of inducing the said Ladoga Building Loan Fund and Savings Association to make them a loan of $700.00,”
That the association had no knowledge of the use to which said loan was to be put, other than as stated in said affidavit; that it knew nothing of the circumstances and condition of the Trinkles other than the information derived from their representations; that, relying upon their representations and believing them to be true, the association made said loan to them and took their note and mortgage therefor; that the Trinkles, at and prior to the procuring of the loan and prior to the execution of the note and mortgage, were represented by their agent Charles W. Ross; that in the negotiations the association had no. dealings direct with the Trinkles or either of them and did not know either of them, but relied wholly upon the statements made by their agent and upon the statements contained in their said affidavit; that the Trinkles, through their said agent, represented to the association that the purpose in procur- . ing the loan was to pay the purchase price of the real estate to be mortgaged by them, which real estate was owned by them jointly as tenants by the entireties; that at the request and under the directions of the Trinkles the money constituting the loan was paid to them jointly; that said payment was made by check payable “to the order of Chas. W. Ross, Agent, * * * For Completion of. Loan, Christ. C. Trinkle and Wife”;
To the second and fifth paragraphs of reply Alice Trinkle demurred on the ground that neither paragraph states facts sufficient to avoid her defense. In the memorandum accompanying her demurrer two objections are pointed out, viz.: (1) That it is not averred that the money loaned was paid to Alice Trinkle in cash or by check or draft payable to her order; (2) that the reply affirmatively shows that the money loaned was not paid to Alice Trinkle in cash or by check or draft payable to her order, but was paid by check payable to the order of Charles W. Ross, agent. Her demurrer was overruled as to. each paragraph. Christopher C. Trinkle filed his answer in which he averred the same facts averred in the answer filed by his wife, claiming that because the mortgage is void as to her it cannot be foreclosed against him. To his answer the association replied in two paragraphs, numbered 3 and 4. The third is a general denial, and the fourth avers the same facts averred in its second paragraph of reply to the answer of Alice Trinkle. To the fourth paragraph of reply Christopher C. Trinkle demurred on the identical grounds stated in the demurrer filed by his wife. His demurrer was overruled. The court made a general
From what we have said concerning said fifth paragraph, it follows that the facts averred in each of the second and fourth paragraphs of the reply are also sufficient to constitute an estoppel, regardless of the provisions of §7856, supra. The court did not err in any of the rulings on said demurrers.
Judgment affirmed.
Note. — Reported in 117 N. E. 542. Husband and wife: representations of wife, estoppel, 57 Am. St. 178; right to defend on ground of wife’s suretyship in execution of incumbrance on property held by entireties to secure husband’s debt, 66 L. R. A. 637. See under (7-10) 21 Cyc 1346.