149 Ind. 123 | Ind. | 1897
The appellant sued the appellees to foreclose a mortgage on real estate, given by appellee Moats and wife to secure a bond executed to appellant by said Henry H. Moats for a loan of |3,000.00.
Cross-complaints were filed by certain defendants, setting up and seeking to enforce against the same real estate liens of mechanics and materialmen, and judgment liens.
The substance of so much of the facts found by the court as are necessary for the decision of the question presented by the second conclusion of law, are that, on September 7,1895, the defendant, William H. Perkins, sold and conveyed to the defendant, Henry H. Moats, a certain described lot in the city of Indianapolis, and on September 9, 1895, in consideration of said conveyance, said Moats executed to said Perkins four promissory notes of $200.00 each, payable in one, two, three, and four years after the date thereof, with interest at six per cent, per annum, and at the same time executed a mortgage on said lot, in which his wife, Emma 0., joined, to secure said notes, which mortgage, within forty-five days, was duly recorded in the recorder’s office of Marion county; that afterwards, on November 18, 1895, the bond and mortgage sued on were executed by said Moats and wife to appellant upon said real estate to secure the payment of said loan of $3,000.00, which mortgage was duly recorded in the same recorder’s office within forty-five days; that afterwards, on November 30, 1895, said Perkins executed and caused to be entered of record upon the margin of the record of his said mortgage a waiver in the words and figures following: “I hereby waive the
The court finds all the facts- necessary to constitute three several mechanics’ liens on said real estate, incurred in the erection of said dwelling, all of which had been assigned to the cross-complainant, Gardner, dated- December 17, 1895, January, 1896, and January 8, 1896, aggregating $155.13. There being no question about these liens and dates thereof, or amounts, the facts are omitted.
The court found the following judgments recovered against said Moats, and that they, at the time of the recovery of each, became liens on said real estate, with dates, amounts, and names of judgment creditors: Boothby, November 2, 1895, for $390.00; Aufderheide & Zumpfe, November 11,1895, $71.70; Florea & Seidensticker, November 16,1895, $79.59; which last judgment is owned by John Furnas.
The material used and labor performed in the erection of said dwelling house were of the value of
The second conclusion of law is: “That the proceeds arising from the foreclosure sale should be applied as follows: (!) To cost and accruing costs; (2) to the plaintiff, $44.50; (3)to cross-complainant Perkins, $1.50; (4)to the payment of the amounts due upon mechanics' liens set forth in the foregoing finding, $155.13; (5) to the plaintiff, $720.28; (6) to the amounts due on the judgments set forth in the foregoing finding of facts, to wit: the judgment of Arthur L. Boothby, $390.00; Aufderheide & Zumpfe, $71.70; John Furnas, $79.59; (7) to the plaintiff, $24.00; (8) to the cross-complainant Perkins, $220.41, now due, with other sums to become due as hereinafter found; (9) to the plaintiff, $2,406.81; (10) the residue, if any, to be paid into the office of the clerk of this court to abide the further orders thereof.”
There would be no difficulty in determining the
But it is insisted that the contract of Phillips, the appellant’s agent, was void in so far as it purported to bind appellant to see to the application of the loaned money to the payment of the expenses of the construction of the dwelling and buildings mentioned, because beyond the scope of his authority. However, appellant seeks to hold that part of the agreement good and binding which waived the priority of Perkins’ mortgage in favor of, and to make appellant’s mortgage prior to it. Unless appellant can hold that part of the agreement intact, valid, and subsisting, it is in a much worse condition than that in which the court has placed it in the marshaling of the liens. The facts found, we think, are amply sufficient to show that appellant’s agent, Phillips, had authority to make both parts of the agreement on its behalf, as well as that part alone which is favorable to the appellant. The whole related to the act of effecting the loan, Besides, it would be monstrous to permit appellant to hold the consideration yielded to it for its agreement to secure the proper application of the loaned money, and yet hold that agreement void for want, of authority in its agent to bind it by such stipulation.
Appellant further contends that the conclusion was wrong in not placing the judgment liens next to the payment of the costs and mechanic’s liens, as we understand its contention. That, however, could not benefit appellant, but would positively injure it by placing it $541.29, the aggregate amount of the judgment liens, farther off from the money to be distrib
However, appellant’s learned counsel take another tack against the order of the liens as marshaled by the court. They contend that by the Perkins waiver in appellant’s favor, it not only obtained priority to the amount of the Perkins mortgage, $875.41, but that it obtained a priority over all liens junior to the Perkins mortgage to the full extent of its loan of $3,000.00, or so much thereof as it actually furnished to Moats.
But that would be a strange doctrine, indeed; á doctrine, it is believed, to which no court, either of law or equity, ever yet gave its assent. The terms of the waiver were simply to make the Perkins mortgage second to appellant’s mortgage, and, in equity, it is
If appellant’s contention on this point could be maintained, it would result not only in making appellant’s junior mortgage senior to Perkins’ mortgage, and clothing the appellant with the priority of the Perkins mortgage, but it would also make the agreement effective to bring up the rank of appellant’s mortgage in seniority ahead of the judgment liens, all of which were actually prior and superior to appellant’s mortgage. This would be putting it in the power of two lien holders, by contract between themselves to displace the liens of all other lien holders on the same property without the knowledge or consent of such other lien holders. There was no error in the conclusions of law. The judgment is affirmed.