170 Ind. 666 | Ind. | 1908
This suit was brought by appellant against appellees. It appears from the amended complaint that on June 13, 1895, Sallie H. Scott and Benjamin S. Scott, her husband, executed a mortgage to the Mutual Life Insurance Company on certain real estate securing a bond signed by
“on which I promise to pay said Mutual Life Insurance Company of Indiana a monthly instalment of $1.50 interest, also insurance premium of sixty cents on policy No. 28,240, together with $1.80 as principal, making a monthly instalment in advance of $3.90, and a like amount to be paid the fifteenth day of each month thereafter for the term of 120 months. If for any cause said payment is not made within ninety days after the same becomes due, then this bond shall become due and collectible without any relief from valuation or appraisement laws of the State of Indiana, with ten per cent attorney’s fees or commission therein. This bond is given for borrowed money, loaned me this day by said Mutual Life Insurance Company of Indiana, and I agree to comply with all the stipulations contained in the mortgage which I have this day executed to secure said payments to said Mutual Life Insurance Company of Indiana, and all the agreements and stipulations contained in said policy No. 28,240 as therein provided, when, upon maturity of this bond, said policy shall mature, and each shall operate as a payment of the other in full satisfaction thereof as concurrent mutual obligations. In witness whereof I have hereunto set my hand and seal this 13th day of June, 1895.
Sallie H. Scott.”
Said bond and mortgage were made a part of the amended complaint.
It is alleged in said amended complaint that said Sallie IT. Scott died intestate and left surviving her as her only heirs at law Benjamin S. Scott, Lillie Schrader, Annie L. Scott and Georgia Scott; that no administration was h'ad upon her said estate; that afterwards, on November —, 1900, Benjamin S. Scott and-Scott, his wife, Lillie Schrader and Calvin Schrader, her husband, sold and conveyed all of their right, title and interest in and to said real estate to Edward L. Schrader, who, in consideration therefor, and as a part of the purchase money, assumed and agreed to pay said mortgage indebtedness; that afterwards, to wit,
The issues upon which the cause was tried were upon the amended complaint, the general denials thereto, answers of payment, and six-year statute of limitations, and the replies thereto in denial. The cause was heard by the court, and a finding made in favor of appellees, upon which judgment was rendered against appellant.
The only error assigned calls in question the action of the court in overruling appellant’s motion for a new trial.
' The causes assigned for a new trial, which are urged as grounds for reversal, are that (1) the decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law.
In the case of Huter v. Union Trust Co., supra, which was a controversy over one of the bonds executed to this samé Mutual Life Insurance Company, this court, at page 211, said: “If these borrowers and nonborrowers had been doing business through a duly authorized building and loan association, its insolvency would have abrogated the stock and loan contracts — the situation would be treated by the courts as though the contracts had never existed^equity would administer, not according to the contract relations of the parties, but according to their actual relations resulting from what they had done; and according to the nature and source of the fund and of the claims upon it. * * * An allowance of the plea of ultra vires could not wipe out the contracts more thoroughly.”
In Marion Trust Co. v. Trustees of Edwards Lodge, etc., supra, this court, at pages 97 and 99, said: “The insolvency of the association incapacitated it from performing its part of the ■ contract. It is not the function of the receiver to continue the business, but to wind up the affairs of the defunct institution. The incapacity of the association to perform its part relieved appellee of the obligation to continue the stipulated monthly payments under the contract. Whatever appellee has to pay to appellant must
In Fidelity Bldg., etc., Union v. Smith, supra,, this court, at page 680, said: “Whatever the member has to pay is to be paid at once, and in a single sum. The amount to be determined, not from the abrogated contract, but from the equitable principle of adjusting the losses with equality among the stockholders.”
In Union Trust Co. v. Shilling, supra, a suit was brought on one,of these same Mutual Life Insurance Company’s bonds, and the appellant insisted that to the judgment rendered there should be added ten per cent attorneys’ fees, as provided in the bond. The court in passing on the case, at page 545, said: “The Mutual Life Insurance Company having become incapacitated from performing its part of the contract, the appellee Peter F. Shilling, was thereby released from his obligation to continue making the stipulated monthly payments. The total amount of his indebtedness was determined, not from the terms of the bond — for that had been abrogated — but by the application of equitable principles to the existing facts. He was chargeable with the amount of money received by him with six per cent interest thereon. * * His debt matured by reason of the insolvency of the company and for no other reason. No warrant exists for swelling its amount by the addition of an attorney’s fee. The stipulation therefor relied upon is found in the bond. If that bond were recog
It is clear, from what is said in the cases cited, that as said bond executed by said Sallie H. Scott was abrogated, and the recovery is for money had and received, the six-year statute of limitations applies. Under said rule the indebtedness of said Sallie IT. Scott became due in a lump sum on May 3, 1897, and this action was commenced April 8, 1904, more than six years after the right of action accrued.
This is not a contract to pay “a certain sum of money in a certain time, ’ ’ 'but it shows that the mortgage was given to secure the performance of the agreement of Sallie IT. Scott set out in the bond which was abrogated by the incapacity of the Mutual Life Insurance Company to perform
It is evident that appellant was entitled, under the evidence, to a finding and judgment against appellee Orlando Ross for the five-ninths of the amount due, to be determined under the rule declared in the authorities before cited, and a forclosure of said mortgage to pay said sum. Post v. Lossy (1887), 111 Ind. 74, 78, 60 Am. Rep. 677; Bridges v. Blake (1886), 106 Ind. 332, and cases cited; Arbogast v. Hays (1884), 98 Ind. 26, and cases cited; Lilly v. Dunn (1884), 96 Ind. 220, and cases cited; Crawford v. Hazelrigg (1889), 117 Ind. 63, 70, 2 L. R. A. 139, and cases cited; Daugherty v. Wheeler (1890), 125 Ind. 421; 13 Am. and Eng. Ency. Law (2d ed.), 789 (2) (a), 790, and cases cited in notes; 2 Jones, Mortgages (6th ed.), §1207; 1 Kerr’s Supp. to Wiltsie, Mortgage Foreclosures, §62.
The judgment is affirmed as to all the appellees except Orlando Ross, and is reversed as to him, with instructions to sustain the motion for a new trial as to him, and for further proceedings not inconsistent with this opinion.