Williams v. Perry

20 Ind. 437 | Ind. | 1863

Davison, J.

This was an action by James Perry against James Dickson, Stephen Pierson, George Bowen, William Crim, James Hazlett and Addison Williams, to foreclose a mortgage on lot No. 3 in the south front of the town of Anderson. The mortgage bears date July 14th, 1856, and was executed by the defendants, Dickson, Grim, Pierson, Hazlett and Bowen to one James Woods to secure the payment of three notes, each for 325 dollars, and payable, one note at twelve, one at eighteen, and one at twenty-four months. Woods, by indorsement, assigned the notes and mortgage to the plaintiff. The record shows that the defendants, at the time they executed the mortgage jointly, purchased of Woods the lot therein described, received from him a deed in fee, gave the notes for the purchase money, and executed to him the mortgage in suit to secure the payment of the notes; that afterwards the defendants, Dickson, Grim, Pierson, Hazlett and Bowen, agreed verbally to make partition of the lot, and in pursuance of that agreement assigned to Pierson the east half of the east half thereof; to Grim and Hazlett the west half of the east half; to Bowen the east half of the west half, and to Dickson the west half of the west half; and further, it was agreed that the parties should execute to each other quit-claim deeds for their respective parcels so assigned to them; that Pierson, having taken possession of his part of the lot, and erected a brick business house thereon, afterwards sold it to the defendant, Williams, who paid the purchase money; and they,Dickson, Grim, Pierson, Hazlett and Bowen, the title to the entire lot still being in them, executed to him, for the part so purchased of Pierson, a deed in fee, with covenants of warranty. It appeared in evidence that, prior to institution of this suit, three-fourths of the amount of the notes and mortgage had been paid to the plaintiff, as follows: Grim and Hazlett had paid one-fourth; Dickson one-fourth, and Bowen one-fourth; that Pierson had failed to pay any part thereof, and that the residue, being the one-fourth of said amount, remained due and unpaid.

Upon final hearing it was adjudged by the Court that the mortgage be foreclosed; that, for the payment of the amount due, &c.,. the mortgaged premises be exposed to sale, &c.; . that the sheriff in making the sale, first offer the “east half of the east half’’ of said lot as set off to Pierson, and by him sold to Williams; and that by a failure of a sale of said “east half of the east half” to realize a sufficient amount to pay, &c., then the residue of the premises, or so much thereof as may be sufficient, &c., be sold, &e.

W. P. Pierce, for the appellants. Walter March, for the appellee.

The defendant, Williams, moved for a new trial; but this motion was overruled. He appeals to this Court.

The order, so far as it directs the portion of the lot “set off' to Pierson and by him sold to Williams,” to be first offered, is said to be erroneous. We think otherwise. The several owners of the residue of the lot having each paid one-fourth of the purchase money, the remaining one-fourth was, in equity, the debt of Pierson; and, as his debt, it was properly chargeable on the portion set off to him. As contended, it may be true that Williams, having purchased of Pierson, and received from the several owners of the mortgaged premises a deed “with covenants of warranty,” could recover on these covenants; but, in this Court, he is not entitled to that defence. The mortgage, being duly on record, he must be presumed to have had notice of the lien, and, to obviate a suit on the mortgage, he might have paid off the incumbrance, and then have relied on the covenants of the deed for re-payment, &c. But .the mortgagee, having been compelled to resort to his action to foreclose, there seems to be no reason why the order of the Court’as it stands should be held objectionable.

Per Curiam.

The judgment is affirmed, with costs.