31 Ind. 467 | Ind. | 1869
This suit was prosecuted, among other things, for the recovery of the amount secured by a note executed by the appellant John B. Yail to the appellee Samuel L. Jones.
Yail set up in his answer, that the note was given for money loaned by Jones to Yail; aud that, to secure the payment thereof, the defendant Yail executed to the plaintiff Jones a deed, absolute on its face, but intended as a mortgage, for lands in Jasper county, describing' them, of the value of five thousand dollars; that the deed was executed as a security for the payment of the note, aud for no other consideration whatever; that the plaintiff Jones holds possession of the real estate and refuses to reconvey the same and give the possession thereof on the payment of the note.
The plaintiff replied by the general denial.
It was agreed between the plaintiff and defendant, in writing, on the trial, that there was due to the plaintiff Jones, on the note, $908; that the jury should find only upon the issue whether the instrument purporting to be a deed was a mortgage; and that judgment and decree should be rendered upon the finding as the law might warrant.
The jury found for the defendant Yail, on this issue. On the plaintiffs’ motion the court arrested the judgment on the verdict, on the alleged ground that the court had no jurisdiction of the subject-matter submitted to the jury. This
Independent -of the code, it is well settled, that where the court has jurisdiction.of the proper parties, it may by Its judgment or decree compel them to do equity in relation to lands located without its jurisdiction. See Gardner v Ogden, 22 N. Y. 327, and the authorities cited.
Has the code changed this rule, as to defendants? . It is provided, that “the defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off', whether legal or equitable, as he shall have.” 2 G. & TI. 88.
In Woodruff v. Garner, 27 Ind. 4, it is correctly said, that “the counter-claim thus authorized comprehends recoupment, and much more. It hardly admits of question that it embraces, also, what was known as the cross-bill in equity against the plaintiff.”
Jones could have commenced his action on the note and mortgage in Jasper county; ho however elected, as he had a right to do, to sue on the note hr Dearborn county. Is the defendant thereby cut off' under the code from his counterclaim? The filing of a counter-claim is in no sense the commencement of an action. It is filed in a suit already commenced.
The New York code, from which ours was largely borrowed, uses the word “tried,” instead of “commenced.” It may be that the latter word was used in our code to harmonize with this provision as to the right of a defendant to
Eo possible harm can arise from this construction. The plaintiff still has'his election of the forum, but he cannot by such an election deprive the defendant of his right of defense. A different construction leads to a multiplicity of actions, thereby greatly increasing the expense of litigation..
The court erred in arresting the judgment on the verdict.
Judgment reversed, with eosts, and cause remanded, with direction to render the proper decree on the verdict.
I cannot concur in the opinion of my brother judges in this case, pronounced by Gregory, J., holding that the Dearborn Circuit Court erred in refusing to render a decree that the deed executed by Vail to Jones to the land in Jasper county was only intended as a mortgage to> secure the note for six hundred dollars. My first objection to such a decree is, that the Dearborn Circuit Court has no jurisdiction of the subject-matter, as the land is situate in Jasper county. Section twenty-eight of the code provides, that “actions for the following- causes must be commenced in the county in which the subject of the action, or some part thereof, is situated: First. For the recovery of real property or of an estate or interest therein, or for the determination in any form of such right or interest, or for injuries to real property. Second. For the partition of real property. Third. For the foreclosure of a mortgage of real property.”
The object of the answer setting up- the fact that the note
Nor can I concur in the conclusion that the matter set up in the answer constitutes a counter-claim to the action on. the note, within the proper meaning of the statute.
The answer does not claim to bar the action on the note, or to lessen the amount of the judgment claimed thereon by the plaintiff; nor does it seek to recover a personal judgment against the plaintiff.
The right, under the code, to sue on a note secured by mortgage without at the same time asking a foreclosure of the mortgage, is uncontrovertible. Both remedies may be joined in the same suit, provided it is brought in the county where the land lies; yet they are separate and distinct remedies. A suit to foreclose the mortgage is local to-
Here the action was on the note alone, and simply sought a personal judgment against the defendant; of that action the Dearborn Circuit Court had jurisdiction. But, admitting that the conveyance of the land, in Jasper county was intended as a mortgage, as alleged, still, as the land was not situate in Dearborn county, the circuit court of that county would have no jurisdiction of the subject-matter, and therefore could not render a decree of foreclosure.
As the suit is not upon the alleged mortgage, the matter set up as a counter-claim is not directly connected with the cause of action. It is foreign to it, or so remotely connected with it as not to come within the purview of the statute.
It is said in the case of the National Fire Ins. Co. v. McKay, 21 N. Y. 191, under a similar statute to our own, that “a counter-claim, when established, must in some way qualify or must defeat the judgment to which the plaintiff is otherwise entitled.”
The question as to what constitutes a valid counter-claim under our statute was discussed to some extent in Conner v. Winton, 7 Ind. 523; Lovejoy v. Robinson, 8 Ind. 399; and Slayback v. Jones, 9 Ind. 470. It was held in the latter case, after a somewhat careful examination of the question, that the definition in our code of counter-claim is identical with the previous definition in the American reports of recoupment, and that it is the same thing. The subsequent cases on the subject were consistent with that ruling, until the case of Woodruff v. Garner, 27 Ind. 4, which was a complaint to obtain the rescission of a contract between the parties for the exchange of lands, on the ground that the contract was procured by certain false and fraudulent representations of the defendant. One of the paragraphs of the answer, in form a counter-claim, deified the fraud and alleged, among other things, that the plaintiffj without right,
It is not my purpose to question the correctness of the .ruling in that case, in holding the answer good, but I think it was an error to call it a counter-claim under the statute. To do so is simply a misnomer of the pleading. Nor do I concur in the statement that, if “counter-claim,” under the statute, does not embrace what was formerly known as the cross-bill in equity, it would result that, in many cases, what formerly might have been settled in one litigation, would, under the code, require two or mofe separate suits to determine it.
Notwithstanding the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, -are abolished by the code, still where the right of action or the remedy sought is purely equitable in its character, it is none the less an equitable action under the code, and every matter which under the former practice might have been set up in such cases by way of a cross-bill may still be urged by an answer in the nature of a cross-complaint; but in many cases such a pleading would not constitute a counter-claim within the
I think the judgment of the circuit court should be affirmed.