53 Ind. 208 | Ind. | 1876
The appellant brought his complaint against the appellees, in which he alleges the following facts:
That on the 2d day of March, 1836, John Parker was the owner and seized of certain lands, describing them, and by an instrument in writing, made an exhibit, pretended to assign said lands (with others) to N. B. Palmer, treasurer of the State, to secure a loan of four hundred dollars, made to him by Palmer as said treasurer, which instrument was recorded in said county on the-day of-, 1836;
The appellees filed a demurrer to the complaint, alleging the insufficiency of the facts charged, as cause. The demur
It is conceded by the appellees that the mortgage made by Parker to Palmer, Treasurer of State, not having been acknowledged or proved, was not entitled to record in Morgan county, and the fact that it was so recorded is not notice to a subsequent purchaser in good faith; but they contend that the mortgage was given to secure a loan from the school fund, and is, therefore, not subject to the general law requiring deeds and mortgages to be recorded in the county where the land lies; and that the record and proceedings in» the auditor of state’s office, in reference to such mortgages, amounts to constructive notice to all subsequent purchasers. The latter proposition is' opposed by the appellant; and upon this controversy the parties have prepared elaborate briefs; but we cannot perceive that there is any such question presented by the pleadings. There is nothing before us but the complaint. Neither the mortgage, made by Parker to Palmer, nor the conveyance, made by the governor to the appellees, are properly exhibits. The action is not founded upon these written instruments, 2 G. & H. 104, sec. 78; it is brought to destroy them, and they need not, therefore, be filed with the complaint (Vanschoiack v. Farrow, 25 Ind. 310), and, when filed, do not supply the necessary averments in the pleading (Knight v. The Flatrock, etc., Turnpike Co., 45 Ind. 134), and in this case cannot be noticed'as a part of the complaint. Trueblood v. Hollingsworth, 48 Ind. 537. There is no averment that the mortgage made by Parker was given to secure a loan from the school fund, as is assumed by the appellees in their brief, nor from the saline fund, as seems to be admitted by the appellant, nothing, except that it is payable to the treasurer of state, to show us that it is different from any ordinary rnort.gage between individuals. The complaint on its face shows a good title in the appellant, derived from Wilson, and
The judgment, therefore, is reversed, with costs, and the cause remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings.