57 Ind. App. 1 | Ind. Ct. App. | 1913
This is a suit by appellant, Ezra C. Voris, against William H. Ferrell, Martha A. Ferrell, his wife, and William A. Deitrick, to foreclose a mortgage on 120 acres of real estate in Montgomery County, Indiana. The defendants, Ferrell and Ferrell, answered the complaint by general denial. The defendant, Deitrick, answered .by general denial and also filed two paragraphs of special answer to the complaint. He also filed a cross-complaint against plaintiff and his codefendants, Ferrell and Ferrell, and one Frank C. Milligan, who was not a party to the original suit. The plaintiff Voris replied to the special answers by general denial and by a special paragraph. Plaintiff answered the cross-complaint by general denial and by two paragraphs of special answer. The defendants, Ferrell and Ferrell, answered the cross-complaint by general denial and the defendant, Milligan, filed an answer of general denial to the cross-complaint and two paragraphs of special answer. By the several pleadings, defendant Deitrick sought to have his deed from Ferrells declared a mortgage, and to set it aside, to set aside the release of said mortgage for $1,000, to foreclose the latter and also the mortgage for $3,500, as valid and subsisting liens on said real estate, prior and superior to the lien of the plaintiff’s mortgage.
Appellant’s assignment of error duly questions the correctness of the conclusions of law so stated. The finding of facts is very long and in substance as follows: On December 28, 1906, Charles Ferguson was the owner of the real estate in question and on that day executed to one Jarvis his note for $3,500, and secured the same by a mortgage on said real estate; that on December 19, 1908, said Ferguson sold said real estate to one Otis S. Eoberts, and conveyed the same to him subject to said mortgage; that on January 8, 1909, said Eoberts borrowed from defendant, Deitrieb, $1,000 for which he gave his promissory note and secured the same by a second mortgage on said real estate; that on March 15, 1909, said Eoberts sold said real estate to Frank C. Milligan and conveyed the same to him by warranty deed, for the named consideration of $8,500 by the terms of which deed the grantee assumed and agreed to pay the amount due upon each of said mortgages; that on May 10, 1909, said Milligan sold and conveyed said real estate to 'William H. and Martha A. Ferrell, his wife, for the named consideration of $7,200 and on that day, as part of the purchase price, said grantees executed to said Milligan a note for $2,200 and secured the same by mortgage upon said real estate; that said note and mortgage for $3,500 became due on December 18, 1909, and William Jarvis, the owner there
“This note, principal and interest to become due and collectible upon the failure of the maker to pay the interest when due, and the interest when due to bear the same rate of interest as the principal. The maker thereof to have the privilege of paying $100.00 or multiple thereof on this note whenever any installment of interest becomes due.”
The finding shows that the several deeds and mortgages were duly recorded within the time provided by law; that said Ferrell and Ferrell were improvident and inexperienced people, easily persuaded and imposed upon by those in whom they had confidence, and that they trusted Milligan, who was a man of experience, engaged in the real estate and loan business and well acquainted with the value of land; that he maintained an office in Waveland, Montgomery County, Indiana, where said Deitrick resided; that the first installment of interest on said note for $2,200 fell due on November 10, 1909, and on the following day the payees paid on the principal of said note $100 and $45 on the interest then due and soon thereafter paid the balance of the semiannual installment of interest in the sum of $21; that said William A. Deitrick knew said Milligan and had confidence in him, and relied upon his statements as true; that said Deitrick did not desire to foreclose his mortgage for $1,000 and did not believe that the real estate would sell for enough to pay the same and the mortgage for $3,500, the costs of foreclosure and the taxes on said real estate; that
On the foregoing finding of facts the court stated its conclusions of law in substance as follows: That William A. Deitrick is the owner of said mortgage for $3,500 described in the findings; that the release of said mortgage for $1,000 described in the findings should be set aside and the mortgage be and the same is in full force and effect; that said Deitrick is entitled to recover on his cross-complaint and to have said mortgages declared prior and superior liens to that of the plaintiff’s mortgage, on the real estate aforesaid, and to foreclose said mortgages; that the sum paid by said
"We find no error in the eonclnsions of law. Judgment affirmed.
Note. — Reported, in 103 N. E. 122. As to deeds absolute in form with agreements to reconvey, see 17 Am. Dee. 300. As to the right to reinstatement of mortgage released or discharged by mistake, see 58 L. R. A. 78S; 26 t. R. A. (N. S.) 816; 28 D. R. A. (N. S.) 825, 904. See, also, under (1) 27 Cyc. 991; (2) 27 Cyc. 1432; (3) 7 Cyc. 858; (4) 27 Cyc. 1326.